Willett v. United Parcel Service, No. M2006-02488-WC-R3-WC (Tenn. 8/11/2008), M2006-02488-WC-R3-WC
| Decision Date | 11 August 2008 |
| Docket Number | No. M2006-02488-WC-R3-WC,M2006-02488-WC-R3-WC |
| Parties | MARK WILLETT v. UNITED PARCEL SERVICE ET AL. |
| Court | Tennessee Supreme Court |
David T. Hooper, Nashville, Tennessee, for the appellants, United Parcel Service and Liberty Mutual Insurance Company.
Allen Barnes, Nashville, Tennessee, for the appellee, Mark Willett.
William C. Koch, Jr., J., delivered the opinion of the court, in which Allen W. Wallace and Jerry Scott, Sr. JJ., joined.
This appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. § 50-6-225(e)(3) (Supp. 2007) for a hearing and a report of findings of fact and conclusions of law. It involves a delivery driver who asserts that he sustained two work-related back injuries in 1999. Following surgery in 2002, the delivery driver's surgeon assigned him a twenty-eight percent impairment and opined that the 1999 injuries had exacerbated a pre-existing back condition. The delivery driver later filed a complaint seeking benefits under the Workers' Compensation Law in the Circuit Court for Davidson County. Following a bench trial, the trial court awarded the delivery driver sixty percent permanent partial disability and temporary total disability from March 2000 to September 2004. The trial court also directed the delivery driver's employer to pay some of his medical expenses. On this appeal, the employer asserts that the trial court erred (1) by admitting the second deposition of the delivery driver's surgeon, (2) by finding that the delivery driver had sustained a permanent impairment as a result of his work-related injuries, (3) by awarding the delivery driver temporary total disability benefits, and (4) by requiring it to pay a part of the delivery driver's medical expenses. For his part, the delivery driver asserts that the trial court erred by failing to award him some of his claimed medical expenses and for declining to impose a bad faith penalty against the employer. We have determined that the award of temporary total disability benefits should be reduced and that the medical expenses awarded by the trial court should be paid directly to the providers rather than in a lump sum to the delivery driver. Therefore, we affirm the judgment as modified by this opinion.
Mark Willett began working for United Parcel Service ("UPS") as a part-time employee in 1978 when he was sixteen years old. He continued working for UPS while he attended David Lipscomb University, and, following his graduation with majors in biology and chemistry, he began working for UPS on a full-time basis.
Mr. Willett sustained work-related low back injuries in 1982 and 1986. The latter injury led to a workers' compensation claim and settlement. On August 3, 1999, Mr. Willett injured his lower back again when he fell from his truck while working on a residential delivery route. He reported his injury to Lynn Woods, his supervisor. When UPS did not initiate the paperwork associated with a workers' compensation claim, Mr. Willett requested that a claim or injury report be filed. He did not, however, request medical treatment. On August 30, 1999, Mr. Willett filed a grievance because UPS had not generated an injury report. Again, he did not request medical treatment for the August 3, 1999 incident.
Approximately one month later, on September 8, 1999, Ted Patterson, a UPS manager, accompanied Mr. Willett on his route. Mr. Patterson was observing Mr. Willett work because of questions about Mr. Willett's performance of this job. According to Mr. Willett, he felt a sharp pain while lifting a box, and he immediately told Mr. Patterson what had happened.1 When he returned to UPS's distribution center, Mr. Willett reported the injury to Liberty Mutual Insurance Company ("Liberty Mutual").2 When asked if he desired to seek medical care, Mr. Willett declined.
Mr. Willett continued to work at his regular job. He took one week of vacation in September and again in November, and he did not work during several holidays during that time. Even though he later insisted that he was experiencing a great deal of pain and that he was having difficulty performing his job, he did not seek or receive medical treatment. He received medical care for an unrelated illness in December 1999, but the record of that illness does not mention a back injury or any other problems with his back.
Mr. Willett first sought medical treatment for his back on February 17, 2000. UPS referred him to Dr. Bradley Rudge, a physician in general practice at Baptist Care Center.3 Dr. Rudge and other physicians at Baptist Care Center had examined and treated Mr. Willett for back problems in 1992 and 1998 and in June and July 1999. Dr. Rudge examined Mr. Willett on February 22, 2000 and referred him to Dr. Robert Clendenin, a physiatrist.
Dr. Clendenin first met with Mr. Willett on March 3, 2000. He initially diagnosed Mr. Willett with thoracic and lumbar strains and prescribed medication and physical therapy. He also placed Mr. Willett on light duty. Later MRI scans of Mr. Willett's thoracic and lumbar spines showed arthritic change in both areas, as well as disc bulges at L4-5 and L5-S1. However, Dr. Clendenin did not believe that Mr. Willett's reported symptoms corresponded to the MRI findings.
Dr. Clendenin also prescribed an epidural steroid injection, but that procedure did not improve Mr. Willett's symptoms. Dr. Clendenin last saw Mr. Willett on April 20, 2000. He recommended that Mr. Willett consult a rheumatologist to determine if there was an underlying disease such as rheumatoid arthritis or lupus. An appointment with a rheumatologist was made and then cancelled after Liberty Mutual decided that the purpose of the referral was unrelated to a work-related injury.
Mr. Willett's relationship with UPS soured during 1999 and 2000. He continued to perform only light duty assignments after being seen by Dr. Rudge. At the same time, UPS cited him for deficiencies in his work and gave him a notice of proposed disciplinary action. For his part, Mr. Willett filed several grievances concerning his injury and other matters. Finally, on March 24, 2000, a supervisor told Mr. Willett that he could no longer work in a light duty capacity and that he would not be permitted to return to work until he received a full release. By the time this case was tried, Mr. Willett had not returned to work in any capacity.
Mr. Willett claims that he attempted unsuccessfully to obtain additional care beginning in January 2001 through his medical insurance and the Tennessee Department of Labor and Workforce Development. On April 5, 2001, Dr. David Gaw, an orthopaedic surgeon, conducted an independent medical examination of Mr. Willett at the request of his lawyer.
Dr. Gaw diagnosed Mr. Willett as having lumbar disc disease and thoracic spine strain. He opined that Mr. Willett had reached maximum medical improvement as of April 5, 2001, the date of the examination. Dr. Gaw found "no evidence upon which to give a permanent physical impairment" and recommended EMG testing of Mr. Willett's lower extremities. Dr. Gaw did not recommend surgery and did not place any restrictions on Mr. Willett's activities.
Mr. Willett was dissatisfied with Dr. Gaw's diagnosis. In September 2002, he sent a letter to Dr. Gaw which included additional medical records. Mr. Willett asked Dr. Gaw to reconsider the opinions stated in his report. Dr. Gaw, however, adhered to his original conclusions.
Shortly after being examined by Dr. Gaw, Mr. Willett flew to Minnesota for a consultation at the Mayo Clinic. While there, he received a functional capacity evaluation ("FCE"), occupational therapy, and pain management. The only records of this visit to the Mayo Clinic in the record are copies of the bills and the FCE report that was conducted on September 6 and 7, 2001. The report described Mr. Willett's symptoms as "generalized muscle pain and pain in hips, knees, right wrist and tailbone and diagnosed his condition as `Chronic Pain Syndrome.'"
In July 2002, Mr. Willett was examined by Dr. Melvin D. Law, a Nashville orthopaedic surgeon. Dr. Law ordered X-rays, an MRI, and a discogram.4 Based upon the results of these tests, Dr. Law recommended a surgical fusion of the L4, L5 and S1 vertebrae. That procedure was carried out on March 31, 2003.
In August 2002, Mr. Willett filed suit against UPS and Liberty Mutual in the Circuit Court for Davidson County.5 The trial court conducted a bench trial from July 31 through August 2, 2006. During the proceeding, the trial court heard the testimony of Mr. Willett, his wife, and thirteen other witnesses. In addition, the trial court accepted into evidence the depositions of Dr. Rudge, Dr. Clendenin, Dr. Gaw, and Dr. Law, as well as six other non-expert witnesses.
The trial court filed its memorandum decision on August 21, 2006. The court specifically credited Dr. Law's testimony as "augmented by Mr. Willett's testimony" and determined that Mr. Willett had sustained compensable injuries to his low back in August and September 1999. The court awarded temporary total disability benefits from March 2000 until September 2004 and assessed a six percent penalty regarding those benefits in accordance with Tenn. Code Ann. § 50-6-205 (Supp. 2007). The trial court also awarded Mr. Willett sixty percent permanent partial disability to the body as a whole, as well as the medical expenses for the treatment provided or ordered by Dr. Law. The court declined to require UPS to pay for other medical expenses and to impose a twenty-five percent bad faith penalty against UPS in accordance with Tenn. Code Ann. § 50-6-225(j) (S...
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