Williams v. United Parcel Serv.

• Decision Date: 28 September 2010
• Docket Number: No. M2009-02334-WC-R3-WC.,M2009-02334-WC-R3-WC.
• Citation: 328 S.W.3d 497
• Parties: Steven WILLIAMS v. UNITED PARCEL SERVICE et al.
• Court: Tennessee Supreme Court — Special Workers' Compensation Appeals Panel

328 S.W.3d 497

Steven WILLIAMS

v.UNITED PARCEL SERVICE et al.

No. M2009-02334-WC-R3-WC.

Supreme Court of Tennessee,

Special Workers' Compensation Appeals Panel,

at Nashville.

June 28, 2010 Session.

Sept. 28, 2010.

David T. Hooper, Brentwood, Tennessee, for the appellants, United Parcel Service and Liberty Mutual Insurance Company.

William J. Butler, Lafayette, Tennessee, for the appellee, Steven Williams.

MEMORANDUM OPINION

WILLIAM C. KOCH, JR., J., delivered the opinion of the Court, in which, JON KERRY BLACKWOOD and WALTER C. KURTZ, SR., JJ., joined.

WILLIAM C. KOCH, JR., J.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel.An employee who sustained a compensable injury to his left knee in 2006 filed suit in the Chancery Court for Wilson County seeking to recover benefits for an additional injury to his right knee allegedly caused by over-reliance on his right leg as a result of the earlier injury to his left knee.The employer denied liability and sought to introduce at trial a Medical Impairment Registry ("MIR") report prepared in accordance with Tenn.Code Ann. § 50-6-204(d)(5)(Supp.2009).The trial court sustained the employee's objection to the introduction ofthe MIR report.Following a bench trial, the trial court determined that the 2006 injury to the employee's left knee was compensable and awarded the employee 27% permanent partial impairment to each leg.On this appeal, the employer asserts that the trial court erred by excluding the MIR report, by finding that the injury to the employee's right knee was a new, compensable injury, and by basing its award on the impairment rating of the employee's physician.We affirm the judgment.

I.

Steven Williams, who is currently sixty years of age, began working for United Parcel Service, Inc.("UPS") when he was twenty-nine years old.He is a high school graduate, and, while he possesses a commercial driver's license, he has no other special training or certifications.For the past twenty-five years, Mr. Williams has worked as a "feeder driver."The job requires him to lift packages up to seventy pounds, to climb steps to reach the cab of his truck, and to move a heavy dolly to hook two trailers to tractor-trailer rigs four times a day.Mr. Williams climbs in and out of the tractor at least twenty times each work day.

Mr. Williams sustained a job-related injury to his right knee in 2003.When Dr. Kurt Spindler performed arthroscopic surgery on Mr. Williams's knee in 2004 to repair a meniscal tear and to smooth down the cartilage, he noted that Mr. Williams already had mild to moderate arthritis underneath his knee cap.Mr. Williams returned to work within a few weeks following the surgery.The surgery did not affect either Mr. Williams's job performance or his leisure activities.Dr. Spindler determined that Mr. Williams had reached his maximum medical improvement by June 2004.

Dr. Spindler assigned Mr. Williams a 5% impairment to his right leg.Mr. Williams settled his workers' compensation claim with UPS in 2005.The agreement provided him with the right to obtain additional medical care from Dr. Spindler for the 2003 injury.

On April 18, 2006, Mr. Williams injured his left knee while helping a co-worker load a trailer.His left foot became wedged between two packages, and his left knee "popped" when he pivoted to pick up a package.He reported the injury to his supervisor, and he was eventually referred to Dr. Spindler.Mr. Williams continued to work in a light duty status while awaiting a decision and authorization for surgery on his left knee.During this period, Mr. Williams favored his right leg and foot over his newly injured left leg.¹

Dr. Spindler performed arthroscopic surgery on Mr. Williams's left knee in May 2006.Mr. Williams missed nearly four months of work.However, Dr. Spindler eventually permitted him to return to work without restrictions.Dr. Spindler concluded that Mr. Williams reached his maximum medical improvement in May 2007.

Dr. Spindler continued to treat Mr. Williams until January 2009.During this period, Dr. Spindler checked the progress of the left knee and sometimes drained fluid or injected steroid medications to reduce inflammation.On these visits, Mr. Williams complained about swelling, pain, and buckling of the left knee.At an appointment in May 2007, Dr. Spindler asked Mr. Williams to rate his own knees on a scale of 1% to 100% based on his own subjective assessment of the condition of his knees.Mr. Williams stated that hisright knee felt 85% and that his left knee felt 60%.Dr. Spindler then assigned a 5% anatomical impairment to the lower left extremity.However, during his deposition, he stated that he believed his earlier rating was erroneous and should have been 10% to the lower left extremity.

Mr. Williams and Dr. Spindler have different recollections regarding the condition of his right knee following the 2006 injury to Mr. Williams's left knee.Dr. Spindler did not recall that Mr. Williams complained about the injury to his left knee aggravating the condition of his right knee.²Mr. Williams, however, recalled that he complained to Dr. Spindler on several occasions that his right leg was bothering him because of swelling, pain, and increased weakness.He testified that he was favoring his left knee and that, by doing so, he was causing overuse and pain to his right knee.With regard to his condition following the surgery to his left knee, Mr. Williams also testified that he had difficulty pushing dollies at work, that both of his knees would occasionally buckle, and that he was required to ice his right knee to reduce the swelling.Finally, Mr. Williams testified that he became concerned for his safety while driving because of the pain caused by using his left foot to engage and disengage the clutch and that he feared that this might cause either or both of his knees to buckle.

Dr. Robert Landsberg, an orthopedic surgeon, performed an independent medical evaluation at the request of Mr. Williams's counsel.He testified in his deposition that both of Mr. Williams's knees had pseudolaxity, meaning that the ligaments were so loose that they felt torn.He stated that Mr. Williams's right calf and thigh had atrophied more than the left calf and thigh and that there was patellofemoral crepitus (audible clicking and popping) in both knees.

Dr. Landsberg also diagnosed both of Mr. Williams's knees with bilateral post-traumatic arthritis.He believed that Mr. Williams's knee problems were clearly due to the work-related injuries and that the right knee deterioration was advanced and progressed by the 2006 work injury to the left knee.Dr. Landsberg opined that the injury to Mr. Williams's left knee caused him to rely on his right knee, thereby worsening and further injuring his right knee.Dr. Landsberg assigned an 18% anatomical impairment to each leg.

Prior to Dr. Spindler's August 24, 2009 deposition, UPS pursued an additional opinion concerning the extent of Mr. Williams's impairment through the Medical Impairment Registry ("MIR").Dr. James Talmage examined Mr. Williams on September 8, 2009 and filed a report on September 9, 2009 concluding that Mr. Williams had a 12% anatomical impairment rating to the left leg.The director of the Department of Labor and Workforce Development's MIR program approved the report and mailed it to the parties on September 16, 2009.Counsel for UPS filed the report with the clerk and master on September 21, 2009, the day before the trial.The trial court sustained Mr. Williams's objection to the introduction of the report because the report was inadmissible hearsay and because the "unfairness and timeliness of the report was bothersome."

The trial court accredited Dr. Landsberg's testimony as to causation and found that Mr. Williams was credible and truthful.It found that Mr. Williams had compensable injuries to both knees due to the 2006 work-related accident and that theright knee injury developed as a result of overuse caused by the left knee injury.Because Mr. Williams had retired voluntarily prior to the trial, the parties agreed that the award of benefits was subject to the one and one-half times impairment cap contained in Tenn.Code Ann. § 50-6-241(d)(1)(A)(Supp.2009).Accordingly, the trial court adopted Dr. Landsberg's impairment rating of 18% to each leg and awarded a 27% permanent partial disability to each leg.

UPS contends on appeal that the trial court erred by holding that the 2006 injury to the left knee and subsequent over-reliance on the right knee caused a new compensable injury to the right knee.UPS also insists that the trial court erred by excluding the MIR report.In the alternative, UPS contends that the trial court erred by adopting Dr. Landsberg's impairment rating instead of Dr. Spindler's rating.

II.

Courts reviewing an award of workers' compensation benefits must conduct an in-depth examination of the trial court's factual findings and conclusions.Wilhelm v. Krogers,235 S.W.3d 122, 126(Tenn.2007).When conducting this examination, Tenn.Code Ann. § 50-6-225(e)(2)(2008) requires the reviewing court to "[r]eview ... the trial court's findings of fact ... de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise."The reviewing court must also give considerable deference to the trial court's findings regarding the credibility of the live witnesses and to the trial court's assessment of the weight that should be given to their testimony.Tryon v. Saturn Corp.,254 S.W.3d 321, 327(Tenn.2008);Whirlpool Corp. v. Nakhoneinh,69 S.W.3d 164, 167(Tenn.2002).However, the reviewing courts need not give similar deference to a trial court's findings based upon documentary evidence such as depositions, Orrick v. Bestway Trucking, Inc.,184 S.W.3d 211, 216(Tenn.2006);Bohanan v. City of Knoxville,136 S.W.3d...