Clarence Trosper v. Armstrong Wood Products, Inc. - Dissenting ( 2008 )


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  •                        IN THE SUPREME COURT OF TENNESSEE
    AT KNOXVILLE
    Assigned on Briefs September 11, 2008
    CLARENCE TROSPER v. ARMSTRONG WOOD PRODUCTS, INC.
    Chancery Court for Scott County
    No. 9446   Billy Joe White, Chancellor
    No. E2007-00816-SC-WCM-WC - Filed December 30, 2008
    WILLIAM C. KOCH , JR., J., dissenting.
    The Court in this case has reversed the holding of the Special Workers’ Compensation
    Appeals Panel that Mr. Trosper failed to prove that his preexisting osteoarthritis was permanently
    worsened by work he performed in the winter of 1997-1998. Based on a selective review of the
    evidence, the Court has concluded that Mr. Trosper is entitled to workers’ compensation benefits
    because his work “advanced the severity” of his osteoarthritis. I respectfully disagree that Mr.
    Trosper has carried his burden of proof in this case.
    I.
    Mr. Trosper went to work for Armstrong Wood Products in 1993 when he was approximately
    fifty-one years old. At that time, he had osteoarthritis in his hands, feet, back, and knees, although
    he apparently did not know it because the disease was asymptomatic. In the winter of 1997-1998,
    Mr. Trosper was assigned to work outdoors moving heavy boards by hand. This work activity
    caused him to experience pain in both hands at the base of his thumbs. He asked to be moved to
    another job, and, in the spring of 1998, his employer moved him to another job inside the plant that
    involved less stress on his hands.
    Mr. Trosper was able to perform his new job and did not experience any further difficulty
    with his hands or seek any medical treatment for his hands. He was moved to another job inside the
    plant in 2000 or 2001. Mr. Trosper characterized his new job as “easier,” even though it required
    him to lift between seven and twelve heavy buckets of material during his shift and to pour the
    contents of the buckets into a hopper. He was apparently able to perform this job without difficulty
    until June 2004. Within a month or two after returning to work following a recovery from an
    unrelated injury to his knee,1 Mr. Trosper began to experience pain in his hands when he lifted the
    buckets of material.
    1
    A fall from a forklift required Mr. Trosper to undergo knee replacement surgery.
    Dr. Cletus McMahon examined Mr. Trosper and diagnosed him with bilateral
    carpometacarpal osteoarthritis in both hands at the base of his thumbs. In October 2004, Dr.
    McMahon performed a surgical fusion of the joint at the base of Mr. Trosper’s right thumb. Mr.
    Trosper returned to work; however, he experienced similar pain in his left hand. Accordingly, Dr.
    McMahon performed a surgical fusion on Mr. Trosper’s left thumb in June 2005. Mr. Trosper
    retired following the second surgery.
    In July 2005, Mr. Trosper filed a complaint in the Chancery Court for Scott County seeking
    workers’ compensation benefits. He alleged that the “repetitive nature of handling lumber and wood
    products” in the winter of 1997-1998 caused work-related injuries that necessitated the 2004 and
    2005 surgeries on his hands. Mr. Trosper did not rely on Dr. McMahon, his treating physician, to
    substantiate his claim. Instead, he retained Dr. William E. Kennedy to provide the necessary expert
    opinion that Mr. Trosper’s work-related activities caused his disability. Dr. Kennedy examined Mr.
    Trosper for the first time in March 2006, almost eight years after the onset of his symptoms and one
    year after Mr. Trosper’s last wrist surgery, and concluded that Mr. Trosper’s condition was caused
    by his work. On March 20, 2007, the trial court, relying on Dr. Kennedy’s testimony, determined
    that Mr. Trosper had sustained a compensable injury resulting in a forty percent vocational disability
    in each hand.
    Armstrong Wood Products appealed, and we assigned the case to the Special Workers’
    Compensation Appeals Panel. Armstrong Wood Products took issue with the trial court’s
    conclusion that Mr. Trosper’s work had aggravated his preexisting osteoarthritis. It also challenged
    the award for temporary total disability benefits and insisted that the forty percent vocational
    disability award was excessive. On May 9, 2008, the Appeals Panel unanimously reversed the trial
    court. The Appeals Panel explained:
    Our examination of this evidence leads us to the conclusion
    that Mr. Trosper failed to carry his burden of proof in this matter. All
    of the doctors agreed that the underlying condition was not caused by
    his [Mr. Trosper’s] employment. They also agreed that the condition
    was progressive. There was a six-year gap between the events alleged
    to have caused a compensable aggravation of Mr. Trosper’s arthritis
    and his initial report to Armstrong. Dr. Kennedy’s examination, upon
    which the trial court relied, occurred two years after that. There were
    no medical records or other supporting evidence concerning Mr.
    Trosper’s arthritis during the period of time between 1998 and 2004.
    This combination of factors renders Dr. Kennedy’s opinion
    speculative, at best.
    Dr. Kennedy’s opinion, which the Appeals Panel characterized as “speculative, at best” has become
    the cornerstone of this Court’s opinion.
    -2-
    II.
    Arthritis is not a single disease. It is actually an umbrella term used for a group of more than
    one hundred medical conditions that collectively affect nearly forty-six million adults and three
    hundred thousand children in America alone.2 While the common symptoms of these conditions are
    pain on motion, stiffness and swelling in one or more joints,3 each condition has different causes,
    prognoses, and treatments. Judicial decisions regarding arthritic conditions are very fact-sensitive.
    Osteoarthritis (also known as degenerative arthritis) is the most common form of arthritis.4
    It afflicts nearly twenty-seven million Americans each year.5 It is a chronic, inflammatory condition
    of the joints that is characterized by destruction of cartilage,6 overgrowth of bone, and impaired
    function.7
    The onset of osteoarthritis tends to be gradual, beginning with short-lived periods of stiffness
    in its early stages. Later, persons with osteoarthritis experience pain when moving the affected joint.
    This pain worsens with prolonged activity and is relieved with rest.8 The prognosis for persons with
    osteoarthritis is variable, depending on the extent and location of the disease.9 In his deposition filed
    in this case, Dr. Ronald J. Fadel explained that arthritis
    can be static for long periods of time, followed by acute inflammatory
    or periods of inflammation, and highly symptomatic, followed then
    by remission. But generally, over the course of a lifetime, and the
    longer someone lives and the more likely this is, they tend to slowly
    get -- get worse.
    2
    Arthritis Foundation, What is Arthritis?, available at http://www.arthritis.org/what-is-arthritis.php (last visited
    Dec. 15, 2008).
    3
    13 Roscoe N. Gray & Louise J. Gordy, Attorneys’ Textbook of Medicine ¶ 176.31 (3d ed. 2001) (“Attorneys’
    Textbook of Medicine”).
    4
    13 Attorneys’ Textbook of Medicine ¶ 176.31(2).
    5
    Charles G. Helmick et al., Estimates of the Prevalence of Arthritis and Other Rheumatic Conditions in the
    United States, Pt. II, 58 Arthritis & Rheumatism 15-25 (Jan. 2008).
    6
    13 Attorneys’ Textbook of Medicine ¶ 176.31(2); see also Cunningham v. Goodyear Tire & Rubber Co., 811
    S.W .2d 888, 892 (Tenn. 1991) (Daughtrey, J., dissenting) (summarizing a testifying rheumatologist’s description of
    osteoarthritis as “a form of arthritis, the cause of which is unknown, but is manifested primarily by a deterioration of the
    cartilages in the joints to the extent that the cartilages lose their ability to properly cushion or pad the joint”).
    7
    6 Attorneys’ Textbook of Medicine ¶ 19B.00.
    8
    13 Attorneys’ Textbook of Medicine ¶ 176.31(2).
    9
    6 Attorneys’ Textbook of Medicine ¶ 19B.70.
    -3-
    None of the other testifying physicians disagreed with Dr. Fadel’s description of the usual course of
    osteoarthritis.10
    Because “arthritis” is not one but many conditions that have different causes, prognoses, and
    treatments, decisions regarding one type of arthritis cannot necessarily be generalized to apply to
    other types of arthritis. These cases are highly fact-sensitive, and thus lay persons, like judges and
    lawyers, should guard against making over-broad generalizations that lack specific support from
    medical experts with regard to a specific arthritic condition.
    III.
    Pain is the most common symptom that patients report to healthcare providers.11 In today’s
    medical and legal context, pain is “first and foremost a bodily sensation”12 caused by injury or
    illness.13 Medical clinicians and researchers frequently define “pain” as “[a]n unpleasant and
    emotional experience associated with actual or potential tissue damage or described in terms of such
    damage.”14 Pain functions as a warning symptom alerting the injured person to take notice and to
    properly care for an injury or illness.15 A “symptom” is any deviation from normal form, function,
    or appearance experienced by a person and thought to indicate some underlying injury or illness.16
    10
    Another text explains that “[t]he onset of osteoarthritis tends to be gradual, beginning with short-lived periods
    of stiffness in the early stages. Later, patients experience pain when moving the affected joint, made worse by prolonged
    activity and relieved with rest. Limitation of motion is common, and bony enlargement may be prominent. Systemic
    symptoms, as in rheumatoid arthritis, are absent, as is ankylosis (fixation or stiffening of a joint). Diagnosis is by x-ray,
    which may show shrunken joints, calcification at the ends of bones, and bone spurs.” 13 Attorneys’ Textbook of
    Medicine ¶ 176.31(2).
    11
    Taber’s Cyclopedic Medical Dictionary 1566 (20th ed 2005) (“Taber’s Cyclopedic Medical Dictionary”);
    Jyotsna N agda & Zahid H. Bajwa, Definitions and Classification of Pain, in Carol A. W arfield & Zahid H. Bajwa,
    Principles and Practice of Pain Medicine 51 (2d ed. 2004).
    12
    Shai J. Lavi, The Problem of Pain and the Right to Die, in Pain, Death and the Law 145 (Austin Sarat ed.,
    2004).
    13
    II The Oxford Companion to Medicine 991 (John W alton et al. eds., 1986); Jose Kuri et al., The Spine at
    Trial: Practical Medicolegal Concepts About the Spine 107 (2002).
    14
    John D. Loeser & Rolf-Detlef Treede, The Kyoto Protocol of ISAP Basic Pain Terminology, 137 Pain 473,
    475 (2008) (“Loeser & Treede”). The International Association for the Study of Pain (“IASP”) is a group of clinicians
    and researchers that is widely considered to be a leader in pain and pain management. M artin V. Totaro, Note,
    Modernizing the Critique of Per Diem Pain and Suffering Damages, 
    92 Va. L
    . Rev. 289, 304-05 (2006).
    15
    13 Attorneys’ Textbook of Medicine ¶ 176.00; 3 Dan J. Tennenhouse, Attorneys’ Medical Deskbook § 22:1
    (3d ed. 1993) (“Attorneys’ Medical Deskbook”) (pain is a “message that something is wrong”); Carol A. W arfield &
    Zahid H. Bajwa, Principles and Practice of Pain Medicine, Preface, at xxi (2d ed. 2004).
    16
    John D. Loeser, Pain as a Disease, 81 Handbook on Clinical Neurology 11, 15 (Fernando Cervero & T.S.
    Jensen eds, 2006). W hile not disagreeing that pain may be characterized as a symptom of injury or illness, the IASP
    (continued...)
    -4-
    Pain is a complex interaction of sensory, emotional, and behavioral factors.17 It is a personal,
    subjective experience.18 Individuals experience pain differently because of significant differences
    in their pain thresholds and tolerance to pain, their response to medications, and their susceptibility
    to clinical pain syndrome.19 Many factors influence a person’s experience of pain, including: (1) the
    nature of the person’s injury or illness, (2) the person’s physical and emotional health, (3) the acuity
    or chronicity of the person’s symptoms, (4) the person’s social milieu or cultural upbringing, (5) the
    person’s neurochemistry, (6) the person’s memory, and (7) the person’s personality.20
    IV.
    The courts have not devised a crystal clear test for determining whether an employee’s work-
    related activities have contributed to the permanent acceleration or worsening of the employee’s
    disability. This inquiry has proved to be particularly difficult in cases where the employee’s
    preexisting condition is some type of arthritis. Because of the progressively debilitating nature of
    this disease, it is difficult to articulate objective rules for determining whether the condition for
    which the employee seeks workers’ compensation benefits was caused by the natural progression
    of the arthritis or whether the employee’s work-related activities accelerated or substantially
    contributed to the employee’s condition.
    Employees are not entitled to workers’ compensation benefits for the effects of the aging
    process or for the progression of illnesses or diseases that are not work-related. Jose v. Equifax, Inc.,
    
    556 S.W.2d 82
    , 84 (Tenn. 1977). The right to receive workers’ compensation benefits arises only
    when the employee has sustained a “personal injury . . . by accident arising out of and in the course
    of employment.”21 Tenn. Code Ann. § 50-6-103(a) (2008); see also Curtis v. G.E. Capital Modular
    Space, 
    155 S.W.3d 877
    , 882 (Tenn. 2005); W.S. Dickey Mfg. Co. v. Moore, 
    208 Tenn. 576
    , 581, 
    347 S.W.2d 493
    , 495 (1961). By statute, a “personal injury” is an “injury by accident . . . that causes
    16
    (...continued)
    currently endorses the concept that, in some circumstances, chronic pain (sometimes referred to as “chronic pain
    syndrome”) should itself be considered to be a disease. Loeser & Treede, 137 Pain at 473, 475.
    17
    13 Attorneys’ Textbook of Medicine ¶ 176.00; Herta Flor & Dennis C. Turk, Cognitive and Learning Aspects,
    in Wall and Melzack’s Textbook of Pain 241 (Stephen McM ahan & Martin Koltzenburg eds., 2005) (“Wall and
    Melzack’s Textbook of Pain”).
    18
    Ronald Melzack & Patrick D. W all, The Challenge of Pain 27-28, 99 (1982); Ronald Melzack & Joel Katz,
    Pain Assessment in Adult Patients, in Wall and Melzack’s Textbook of Pain, at 291; Int’l Ass’n for the Study of Pain,
    Pain Terms: A List with Definitions and Notes on Usage, 6 Pain 247, 249-52 (1979); 3 Attorneys’ Medical Deskbook
    § 22:6.
    19
    Jeffrey S. Mogil & Mitchell B. Bax, The Genetics of Pain, in Wall and Melzack’s Textbook of Pain, at 159.
    20
    Taber’s Cyclopedic Medical Dictionary 1566.
    21
    This case does not involve the work-related death of an employee.
    -5-
    disablement . . . of an employee,” including “occupational diseases” and “mental injuries.”22 Tenn.
    Code Ann. § 50-6-102(12). This Court has characterized a compensable workers’ compensation
    injury as “whatever lesion or change in any part of the system that produces harm or pain or lessened
    facility of the natural use of any bodily activity or capacity.” Fritts v. State Nat’l Casualty Corp.,
    
    163 S.W.3d 673
    , 680 (Tenn. 2005); Brown Shoe Co. v. Reed, 
    209 Tenn. 106
    , 113, 
    350 S.W.2d 65
    ,
    69 (1961); see also Fink v. Caudle, 
    856 S.W.2d 952
    , 958 (Tenn. Workers’ Comp. Panel 1993).23
    The factual complexity engendered by a workers’ compensation claim that involves
    preexisting conditions has provided analytical challenges for the courts. Professor Larson
    characterizes these types of cases as “mixed risk” cases – ones in which a personal cause and an
    employment-related cause combine to produce an injury. 1 Larson’s Workers’ Compensation Law
    § 4.04.24 In circumstances involving mixed risks, Professor Larson states that “[t]he law does not
    weigh the relative importance of the two causes, nor does it look for primary or secondary causes,
    it merely inquires whether the employment was a contributing factor. If it was, the concurrence of
    the personal cause will not defeat compensability.” 1 Larson’s Workers’ Compensation Law § 4.04;
    Fink v. Caudle, 856 S.W.2d at 958 (holding that “an injury is compensable, even though the claimant
    may be suffering from a preexisting condition or disability, if a work-connected accident can be
    fairly said to be a contributing cause of such injury”).
    Analysis of a mixed risk case rests on the principle that for the purpose of workers’
    compensation benefits, an employer takes its employees as it finds them. Fritts v. Safety Nat’l
    Casualty Corp., 163 S.W.3d at 679; Hollingsworth v. S & W Pallet Co., 
    74 S.W.3d 347
    , 357 (Tenn.
    2002). Thus, this Court has long recognized that an employee is entitled to workers’ compensation
    benefits if the employee’s work causes an actual progression or advances25 a preexisting condition
    or disease. Barrett v. Milan Seating Sys., 
    215 S.W.3d 828
    , 835 (Tenn. 2007); Fritts v. Safety Nat’l
    Casualty Corp., 163 S.W.3d at 679; Hill v. Eagle Bend Mfg., Inc., 
    942 S.W.2d 483
    , 488 (Tenn.
    1992); Talley v. Virginia Ins. Reciprocal, 
    775 S.W.2d 587
    , 591 (Tenn. 1989); Baxter v. Smith, 211
    22
    “Mental injuries” are defined in Tenn. Code Ann. § 50-6-102(15).
    23
    In more modern parlance, a “personal injury” for the purpose of a workers’ compensation claim “includes any
    harmful change in the body. It need not involve physical trauma, but may include such injuries as disease, sunstroke,
    nervous collapse, traumatic neurosis, hysterical paralysis, and neurasthenia.” 3 Arthur Larson & Lex K. Larson, Larson’s
    Workers’ Compensation Law ch. 55, Scope (2008) (“Larson’s Workers’ Compensation Law”).
    24
    Professor Larson’s treatise points out that the “most common example [of a mixed risk] is that of a person with
    a weak heart who dies because of strain occasioned by employment.” 1 Larson’s Workers’ Compensation Law § 4.04.
    In that vain, this Court has upheld a workers’ compensation award to an employee with a preexisting heart condition who
    experienced a heart attack precipitated by physical exertion or strain at work. Clark v. Nashville Mach. Elevator Co.,
    129 S.W .3d 42, 47 (Tenn. 2004).
    25
    In its holdings on this subject, this Court has employed other verbs such as “aggravate,” “accelerate,”
    “exacerbate,” and “excite.” Thomas v. Aetna Life & Casualty Co., 812 S.W .2d 278, 284 (Tenn. 1991); Swift & Co. v.
    Howard, 
    186 Tenn. 584
    , 591-92, 212 S.W .2d 388, 391-92 (1948).
    -6-
    Tenn. 347, 361, 
    364 S.W.2d 936
    , 942-43 (1962).26 However, since the earliest days, this Court has
    also recognized that compensability under the workers’ compensation statutes must be based on
    changes in the employee’s underlying condition, not changes in the symptoms of the employee’s
    underlying condition.
    Tennessee’s courts have consistently viewed pain as a symptom of an underlying condition,
    rather than as a condition itself.27 Accordingly, as early as 1969, this Court declined to award
    workers’ compensation benefits to an employee whose work activities “aggravated” the pain of her
    preexisting cervical neuritis and degenerative arthritis. The Court held that “making the pain [of a
    preexisting condition] worse” is not a compensable accident. Boling v. Raytheon Co., 
    223 Tenn. 528
    , 534, 
    448 S.W.2d 405
    , 408 (1969).
    We employed the same reasoning seventeen years later when we declined to award workers’
    compensation benefits to an employee whose work caused increased pain from her congenital
    thoracic outlet syndrome. Citing Boling v. Raytheon Company, we noted that the employee’s work
    activities “aggravated her preexisting condition by making the pain worse but it did not otherwise
    injure or advance the severity of her thoracic outlet syndrome or result in another disabling
    condition.” Smith v. Smith’s Transfer Corp., 735 S.W.2d at 225-26.
    With some inconsequential differences in wording, Tennessee courts have consistently
    continued to recognize that an increase in pain with no actual progression or advancement of the
    underlying condition is not compensable. Barnett v. Milan Seating Sys., 
    215 S.W.3d 828
    , 835
    (Tenn. 2007); Tobitt v. Bridgestone/Firestone, Inc., 
    59 S.W.3d 57
    , 62 (Tenn. 2001); Hill v. Eagle
    Bend Mfg., Inc., 
    942 S.W.2d 483
    , 488 n.1. (Tenn. 1997); Townsend v. State, 826 S.W.2d at 436;
    Cunningham v. Goodyear Tire & Rubber Co., 
    811 S.W.2d 888
    , 891 (Tenn. 1991); Mathenia v.
    Milan Seating Sys., 
    254 S.W.3d 313
    , 319 (Tenn. Workers’ Comp. Panel 2007); Sweat v. Superior
    Indus., Inc., 
    966 S.W.2d 31
    , 32-33 (Tenn. Workers’ Comp. Panel 1998). However, we have also
    continued to recognize that an employer is required to pay workers’ compensation benefits if any
    26
    W e have also held that an employee is entitled to workers’ compensation benefits when his work-related
    activities aggravate a pre-existing condition that causes another disabling condition. Townsend v. State, 826 S.W .2d 434,
    436 (Tenn. 1992); Smith v. Smith’s Transfer Corp., 735 S.W .2d 221, 225-26 (Tenn. 1987). A Maryland treatise on
    workers’ compensation law illustrates this circumstance as follows: “[I]f an employee previously fractured their wrist
    and developed arthritis as a result, then aggravates the arthritis by writing a treatise on workers’ compensation, the
    aggravation is not compensable. However, if the employee develops carpal tunnel syndrome from constant and
    prolonged keyboard use, that: (1) is aggravated by the preexisting arthritis; or (2) aggravates the preexisting arthritis[,]
    the carpal tunnel syndrome may well be compensable if the hazards of it exist in the employment.” 1 Clifford B. Sobin,
    Maryland Practice: Workers’ Compensation § 7:6 (2008).
    27
    On two occasions, a Tennessee court has awarded workers’ compensation benefits to an employee diagnosed
    with chronic pain syndrome. Fritts v. Safety Nat’l Casualty Corp., 163 S.W .3d at 681; Russell v. Thyssenkrupp Elevator
    Mfg., Inc., No. W 2004-01472-SC-W CM-CV, 2005 W L 3201034, at *5 (Tenn. W orkers Comp. Panel Nov. 29, 2005).
    In another case, an employee with chronic pain syndrome was denied workers’ compensation benefits because it was not
    caused by a work-related injury. Osborne v. State Indus., Inc., No. M2001-01288-W C-R3-CV, 2002 W L 1284466, at
    *4 (Tenn. W orkers’ Comp. Panel June 12, 2002). This case does not involve an employee who has been diagnosed with
    chronic pain syndrome.
    -7-
    employee’s work activities cause an actual, progression, advancement, or acceleration of a
    preexisting condition that results in disabling pain. White v. Werthan Indus., 
    824 S.W.2d 158
    , 160-
    61 (Tenn. 1992); Talley v. Virginia Ins. Reciprocal, 775 S.W.2d at 592; Fink v. Caudle, 856 S.W.2d
    at 958-59.
    Evidence that a preexisting condition has progressed, advanced, or accelerated may take
    different forms. One of the most common ways to prove the progression of an preexisting condition
    is to present competent evidence of a physical or anatomical change. See, e.g., Kroger Co. v.
    Johnson, 
    221 Tenn. 649
    , 651, 
    430 S.W.2d 130
    , 131 (1967) (denying workers’ compensation benefits
    to an employee who could not prove an “actual physical change in his feet”). However, we have
    never held that proving the existence of an anatomical or physical change is the only way to establish
    that work-related activities caused a progression in an employee’s preexisting condition. To the
    contrary, we have stated consistently that employees are entitled to workers’ compensation benefits
    when they prove that their work-related activities caused a disability either by producing an anatomic
    or physical change in the employee or by causing a preexisting condition to get worse (that is, to
    progress, advance, or accelerate). Fritts v. Safety Nat’l Casualty Corp., 163 S.W.3d at 679; Tobitt
    v. Bridgestone/Firestone, Inc., 59 S.W.3d at 62; Cunningham v. Goodyear Tire & Rubber Co., 811
    S.W.2d at 890; Smith v. Smith’s Transfer Corp., 735 S.W.2d at 224-26.28
    Thus, Tennessee law, as it currently stands, recognizes an important factual distinction when
    an employee seeks workers’ compensation benefits based on pain caused by working. An employee
    whose disabling pain is caused by a work-related injury is entitled to workers’ compensation
    benefits. However, an employee whose work-related activities caused his or her preexisting
    condition to be more painful is not entitled to workers’ compensation benefits without proof that the
    employee’s work-related activities caused the employee’s underlying condition to progress, advance,
    or accelerate.29
    28
    The complexity of these cases is often increased by the difficulty of explaining medical diagnoses or opinions
    in a way that lawyers and judges can understand them. As one physician testifying in a workers’ compensation case
    observed, “it’s easy to explain to myself medically what happened. It is not nearly so easy to explain to you legally what
    happened.” White v. Werthan Indus., 824 S.W.2d at 160. The ability of courts to reach a fair and just result is also
    hindered when medical experts are asked for an opinion but are not asked to provide a precise explanation regarding the
    basis for their opinion.
    29
    In several cases, physicians have circumvented the necessity of demonstrating that there has been a
    progression, advancement, or acceleration of a preexisting condition by testifying that the pain itself is evidence of an
    anatomical or physical change, even though they could not explain what that change was. See, e.g., Mathenia v. Milan
    Seating Sys., 254 S.W .3d at 319 (the physician testified “that to have increased pain, something has to change
    anatomically to cause that pain if we have got a stable person who is not faking”); Denny v. Norwalk Furniture Corp.,
    No. M2004-02661-W C-R3-CV, 2005 W L 2381886, at *5 (Tenn. W orkers’ Comp. Panel Sept. 28, 2005) (the physician
    testified that “if he was not having any pain prior to [the 2002 incidents] and was having severe pain afterwards that there
    had to be some kind of change, be it microscopic, hormonal, chemical, that would produce increased symptomology”).
    This sort of tautological testimony regarding increased symptomology without testimony about its cause is simply too
    speculative to provide a basis for an opinion regarding the causation of a compensable disabling condition.
    -8-
    V.
    The determinative question in this case is whether Mr. Trosper has presented sufficient
    competent evidence to establish that the work he was performing during the winter of 1997-1998
    caused an aggravation or advancement of his preexisting osteoarthritis. The foundation of Mr.
    Trosper’s case is Dr. Kennedy’s testimony. Like the judges on the Special Workers’ Compensation
    Appeals Panel, I have concluded that Dr. Kennedy’s testimony regarding the causal relationship
    between Mr. Trosper’s work activities in the winter of 1997-1998 and his current disability is simply
    too speculative and imprecise to support an award of workers’ compensation benefits.
    A.
    Employees seeking workers’ compensation benefits have the burden of proving every
    element of their claim by a preponderance of the evidence. Fitzgerald v. BTR Sealing Sys. N. Am. -
    Tenn. Operations, 
    205 S.W.3d 400
    , 404 (Tenn. 2006); Vinson v. United Parcel Serv., 
    92 S.W.3d 380
    , 385 (Tenn. 2002). Except in the most obvious cases, they must present expert medical evidence
    to establish that their injury was caused by their work-related activities. Glisson v. Mohon Int’l,
    Inc./Campbell Ray, 
    185 S.W.3d 348
    , 354 (Tenn. 2006); Fritts v. Safety Nat’l Casualty Corp., 163
    S.W.3d at 678. However, the expert evidence need not be considered in a vacuum. It may be
    considered in light of relevant lay testimony, White v. Werthan Indus., 824 S.W.2d at 159, including
    the employee’s testimony. Eads v. GuideOne Mut. Ins. Co., 
    197 S.W.3d 737
    , 741 (Tenn. 2006);
    Smith v. Empire Pencil Co., 781 833, 835 (Tenn. 1989).
    Medical experts testifying in workers’ compensation cases are not required to render their
    opinions with absolute medical certainty. Glisson v. Mohon Int’l, Inc./Campbell Ray, 185 S.W.3d
    at 354; Saylor v. Lakeway Trucking, Inc., 
    181 S.W.3d 314
    , 320 (Tenn. 2005); Orman v. Williams
    Sonoma, Inc., 
    803 S.W.2d 672
    , 676 (Tenn. 1991). Reasonable doubts should be resolved in the
    employee’s favor. Clark v. Nashville Mach. Elevator Co., 
    129 S.W.3d 42
    , 47 (Tenn. 2004); Hill v.
    Eagle Bend Mfg., Inc., 942 S.W.2d at 487. However, an expert’s opinion regarding causation cannot
    be so speculative or equivocal that attributing the employee’s injury to his or her employment would
    be an arbitrary determination or a mere possibility. Tobitt v. Bridgestone/Firestone, Inc., 59 S.W.3d
    at 61; Woodlawn Mem’l Park, Inc. v. Keith, 
    70 S.W.3d 691
    , 695-96 (Tenn. 2002) (quoting Tindall
    v. Waring Park Ass’n, 
    725 S.W.2d 935
    , 937 (Tenn. 1987)).
    As with other non-jury civil cases, reviewing courts must defer to a trial court’s
    determination of the weight of the testimony of experts who testify in person. Gray v. Cullom Mach.
    Tool & Die, Inc., 
    152 S.W.3d 439
    , 442 (Tenn. 2004); Carter v. First Source Furniture Group, 
    92 S.W.3d 367
    , 370 (Tenn. 2002). However, they should not afford the same deference with regard to
    a trial court’s conclusions with regard to the weight of an expert’s deposition testimony. Barron v.
    State Dep’t of Human Servs., 
    184 S.W.3d 219
    , 221 (Tenn. 2006). In that circumstance, the
    reviewing court should review the record de novo, make its own assessment of the medical proof,
    and draw its own conclusions regarding the weight and credibility of the expert’s opinions. Fritts
    -9-
    v. Safety Nat’l Casualty Corp., 163 S.W.3d at 679; Conner Bros. Excavating Co. v. Long, 
    98 S.W.3d 656
    , 660 (Tenn. 2003).
    B.
    Because all the expert medical testimony in this case was introduced through depositions,
    we must review the record independently, and we must reach our own conclusions regarding the
    weight and sufficiency of Dr. Kennedy’s causation testimony. To do so, we must first ascertain
    precisely what Dr. Kennedy’s testimony was. Despite the ambiguity of the Court’s opinion on this
    point, the record presents Dr. Kennedy’s opinion in clear, understandable terms.
    In both his deposition testimony and in the written report of his independent medical
    evaluation, Dr. Kennedy states that the event that triggered Mr. Trosper’s claim for workers’
    compensation benefits occurred during the winter of 1997-1998 while Mr. Trosper was working as
    a lumber stacker.30 Consistent with the allegations in Mr. Trosper’s complaint, he testified that “the
    work as a lumber stacker during the winter of 1997 and ‘98 permanently aggravated and advanced
    the preexisting underlying carpometacarpal osteoarthritis in both thumbs and caused the painful
    instability of those joints which ultimately necessitated the surgery performed by Dr. Cletus
    McMahon [in 2004 and 2005].” Dr. Kennedy also concluded that between 1998 and 2004, the
    aggravation of the injury sustained in the winter of 1997-1998 was “intermittent rather than constant
    or continuous.” Based on these findings, Dr. Kennedy opined: “[m]ore likely than not, had it not
    been for the cumulative trauma of his work at Triangle Pacific,31 he [Mr. Trosper] would not have
    required surgery, and his arthritis, with its subluxation,32 would not have been advanced or
    aggravated to the extent it was.”
    Dr. Kennedy’s testimony that Mr. Trosper’s disabling condition in 2005 was caused by this
    work activities rather than by the natural advancement of his preexisting osteoarthritis is undermined
    by three concessions that Dr. Kennedy himself made. First, Dr. Kennedy, conceded that he had
    never treated Mr. Trosper and that he had not reviewed medical records or x-rays taken prior to 2004.
    Accordingly, Dr. Kennedy was unable to ascertain the extent of the osteoarthritis in Mr. Trosper’s
    wrists at the time he experienced the first onset of pain during the winter of 1997-1998 and had no
    basis to opine how much Mr. Trosper’s osteoarthritis progressed between the winter of 1997-1998
    and 2004.
    30
    In his written report dated M arch 20, 2006, Dr. Kennedy stated that Mr. Trosper’s onset of symptoms (“pain
    in and subluxation of the carpometecarpal joints in both thumbs”) occurred while working as a lumber stacker during
    the winter of 1997-1998. Dr. Kennedy repeated this conclusion in his deposition testimony when he testified: “[h]e [Mr.
    Trosper] told me that those symptoms occurred after he had been working for several weeks as a [sic] outdoor lumber
    stacker.”
    31
    For the purposes of this case, the parties and the trial court treated Triangle Pacific and Armstrong W ood
    Products as the same entity.
    32
    “Subluxation” refers to the displacement of a bone within a joint where the bone is still touching the joint
    surface but is no longer in its normal anatomic relationship. 2 Attorneys’ Medical Deskbook § 16:5.
    -10-
    Second, Dr. Kennedy acknowledged that Mr. Trosper had continued to work for
    approximately six years after the onset of the pain in his wrists without reporting continuing pain or
    seeking medical treatment. This extended period without reports of pain calls into question the
    disabling nature or the permanency of any injury that Mr. Trosper might have sustained during the
    winter of 1997-1998. Third, Dr. Kennedy conceded on cross-examination that, in the final analysis,
    he was unable to differentiate between the effects on Mr. Trosper’s condition in 2005 of his naturally
    progressing osteoarthritis and the “cumulative trauma” of his work.33
    The Court has chosen not to address the significance of Dr. Kennedy’s concession that he
    could not distinguish between the effects of the cumulative trauma of Mr. Trosper’s job and the
    effect of Mr. Trosper’s naturally progressing osteoarthritis.34 In my mind, however, the concession
    renders Dr. Kennedy’s opinion regarding the causation of Mr. Trosper’s disability equivocal and
    speculative. Even viewing the evidence in the light most favorable to Mr. Trosper, Dr. Kennedy’s
    testimony cannot provide the foundation of a principled decision to award Mr. Trosper workers’
    compensation benefits. Accordingly, I concur with the Special Workers’ Compensation Panel’s
    conclusion that Dr. Kennedy’s opinion was “speculative, at best” and, therefore, that Mr. Trosper
    failed to carry his burden of proof.
    ______________________________
    WILLIAM C. KOCH, JR., JUSTICE
    33
    Dr. Kennedy testified:
    W e really cannot distinguish in most cases between the post-traumatic changes resulting in cumulative
    trauma and the disease process itself, other than by understanding the history, as in this case, and
    understanding the ways that the particular tasks involved would, with reasonable medical certainty,
    have caused extraordinary or unusually severe forces to be conducted repeatedly through the thumb.
    W e really cannot distinguish between the post-traumatic aspects of cumulative trauma or the results
    of cumulative trauma and the disease process itself.
    34
    The Court instead places great reliance on Mr. Trosper’s testimony regarding the nature of his symptoms from
    and after 2004. It is obvious that Mr. Trosper is not qualified to address the question regarding whether his work-related
    activities caused his pre-existing osteoarthritis to permanently worsen. Thus, his truthful testimony regarding his
    symptoms does little to shore up the analytical shortcomings in Dr. Kennedy’s testimony.
    -11-
    

Document Info

Docket Number: E2007-00816-SC-WCM-WC

Judges: Justice William C. Koch, Jr.

Filed Date: 12/30/2008

Precedential Status: Precedential

Modified Date: 10/30/2014

Authorities (28)

Conner Bros. Excavating Co., Inc. v. Long , 2003 Tenn. LEXIS 162 ( 2003 )

Fritts v. Safety National Casualty Corp. , 2005 Tenn. LEXIS 351 ( 2005 )

Vinson v. United Parcel Service , 2002 Tenn. LEXIS 706 ( 2002 )

Curtis v. G.E. Capital Modular Space , 2005 Tenn. LEXIS 106 ( 2005 )

Baxter v. Smith , 211 Tenn. 347 ( 1962 )

Sweat v. Superior Industries, Inc. , 1998 Tenn. LEXIS 97 ( 1998 )

Tobitt v. Bridgestone/Firestone, Inc. , 2001 Tenn. LEXIS 626 ( 2001 )

Fink v. Caudle , 1993 Tenn. LEXIS 378 ( 1993 )

Orman v. Williams Sonoma, Inc. , 1991 Tenn. LEXIS 47 ( 1991 )

White v. Werthan Industries , 1992 Tenn. LEXIS 27 ( 1992 )

Talley v. Virginia Insurance Reciprocal , 1989 Tenn. LEXIS 344 ( 1989 )

Jose v. Equifax, Inc. , 1977 Tenn. LEXIS 609 ( 1977 )

Tindall v. Waring Park Ass'n , 1987 Tenn. LEXIS 859 ( 1987 )

Boling v. Raytheon Company , 223 Tenn. 528 ( 1969 )

Gray v. Cullom MacHine, Tool & Die, Inc. , 2004 Tenn. LEXIS 1116 ( 2004 )

Carter v. First Source Furniture Group , 2002 Tenn. LEXIS 639 ( 2002 )

Woodlawn Memorial Park, Inc. v. Keith , 2002 Tenn. LEXIS 86 ( 2002 )

Fitzgerald v. BTR Sealing Systems North America-Tennessee ... , 2006 Tenn. LEXIS 899 ( 2006 )

Clark v. Nashville MacHine Elevator Co. , 2004 Tenn. LEXIS 173 ( 2004 )

Hollingsworth v. S & W PALLET CO. , 2002 Tenn. LEXIS 213 ( 2002 )

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