Carolyn Love v. Shelby Co. ( 1998 )

IN THE COURT OF APPEALS OF TENNESSEE,
AT JACKSON
_______________________________________________________
)
CAROLYN MARTIN LOVE, ) Shelby County Circuit Court
) No. 80298 T.D.
VS.
Plaintiff/Appellee. )
)
) C.A. No. 02A01-9803-CV-00053
FILED
) November 18, 1998
SHELBY COUNTY, TENNESSEE, )
) Cecil Crowson, Jr.
Defendant/Appellant. ) Appellate C ourt Clerk
)
______________________________________________________________________________
From the Circuit Court of Shelby County at Memphis.
Honorable George H. Brown, Jr., Judge
Carroll C. Johnson, Memphis, Tennessee
Attorney for Defendant/Appellant.
Joseph Michael Cook,
Attorney for Plaintiff/Appellee.
OPINION FILED:
AFFIRMED AND REMANDED
FARMER, J.
CRAWFORD, P.J.,W.S.: (Concurs)
HIGHERS, J.: (Concurs)
Defendant Shelby County appeals the trial court’s judgment which awarded
Plaintiff/Appellee Carolyn Martin Love $123,991.22 in benefits under the County’s on-the-job injury
policy. Most of the trial court’s judgment represented permanent disability benefits and was based
upon the court’s finding, after conducting a bench trial, that Love had sustained a one hundred
percent (100%) permanent disability to each of her arms as a result of her on-the-job injuries. We
affirm.
The dispute in this case focused on the extent of Love’s disability from carpal tunnel
syndrome and related problems. At trial, Love testified that she was fifty-three years of age and had
a high school (GED) education. Love began working for the Shelby County Circuit Court as a
deputy clerk in 1987. Prior to that time, Love’s work experiences were primarily clerical. In January
1994, Love was promoted to the position of principal court clerk in Division VIII. Among other
duties, this position required Love to operate a computer and to lift large docket books weighing as
much as forty pounds. Approximately forty percent of Love’s job duties involved lifting.
In July or August 1994, Love began to notice a tingling sensation in her hands. Love
first sought treatment from Dr. Stanley Patterson, who treated Love for carpal tunnel syndrome. Per
the County’s instructions, Love was evaluated by an occupational medicine doctor, A. Ritchie Lewis,
in November 1994. The report of Dr. Lewis indicated that he believed Love to have “right upper
extremity MusculoSkeletal Disorder.” Dr. Lewis noted that Love had symptoms of carpal tunnel
syndrome but that she also had symptoms involving the other two nerves of the right upper
extremity. Dr. Lewis did not believe that carpal tunnel surgery alone would completely correct the
problem. In addition to recommending a course of treatment to include an anti-inflammatory agent,
a mild diuretic, and wrist splints to be worn at night, Dr. Lewis recommended that Love not be
required to do any data entry work or work with docket books during her treatment.
Love testified that, over a period of time, her hand and arm problems made it
increasingly difficult for her to perform her job duties, which required her to copy, staple, stamp, and
file documents, to operate a computer, and to retrieve and carry the large docket books. As Love’s
condition worsened, she had to use both hands to operate a stapler. In August 1995, she was referred
to Dr. Riley Jones, who began treating Love for carpal tunnel syndrome and tendinitis. Dissatisfied
with her progress under Dr. Jones’ care, however, Love eventually sought treatment from Dr. Joseph
Boals in April 1996. In December 1996, Love underwent surgery performed by Dr. Boals’ partner,
Dr. Owen B. Tabor, to correct the carpal tunnel syndrome in Love’s right arm.
Despite the corrective surgery, Love testified that she continued to experience pain
in both arms, beginning in the hands and “running up the forearms” to the elbow and even the
shoulder. Love gave the following description of her condition at the time of trial:
I have . . . pain on a daily basis. . . .
....
Pain that comes down through here and this thumb, this whole
part of the thumb, this last little finger, I have pain in the wrist, both
sides of the wrist here, the forearms, it runs up the forearms and then
this part of the elbow is where it hurts on both arms, then I have the
shoulder -- where it runs up here, I don’t know if that is a muscle or
what in there right at the neck on both sides but the right being the
predominant, more pain so than the left.
As for her ability to perform her job duties, Love testified that:
I can’t lift anything with any weight to it, I can’t use a stapler, I can’t
do things that you take for granted. There is no way I could lift those
docket books, use a computer, typewriter. Things that I thought
nothing of before in my workplace of doing, I can’t do anymore.
Love also testified that her condition had affected her ability to perform simple tasks at home:
There is a lot of things I can’t do at home anymore. My
husband does the majority of anything done there. I can’t do the
mopping, the vacuuming, the buying -- well I buy the groceries, I go
to the grocery store, but he has to be there to unload them. When I
go, if I sit down on the couch or recliner, how most people do when
they get up, they use their hands to put the weight to bring their arms
up to help lift them up, I can’t do that. I have to get on the edge of a
couch and use sort of my arm to help raise me up. I can’t use -- I
can’t put the weight on my wrist and hands in order to get up from a
couch or recliner, anything soft like that.
Love’s husband, Bobby Love, corroborated this testimony, stating that, throughout
the day, he was required to come to Love’s assistance any time she needed something of any weight
lifted or moved, even if the object weighed only a few pounds, such as a pot of soup. Because of
Love’s condition, her husband also performed the household chores, such as vacuuming and
gardening. Prior to Love’s injury, she and her husband enjoyed playing tennis, bicycling, fishing,
and boating. Love’s husband testified that Love no longer could participate in any of these activities.
Love’s testimony was corroborated further by her coworkers, who testified that they observed Love
experience difficulty in using the computer and in lifting and carrying file jackets, blotters, and
docket books.
Three expert witnesses testified by deposition. Orthopedic surgeon Riley Jones
testified that he treated Love from August 1995 to February 1996. After the initial examination, Dr.
Jones diagnosed Love as having (1) biceps tendinitis, (2) tendinitis at the wrist and mild carpal
tunnel, and (3) chondromalacia of the knee. Dr. Jones treated Love with medications, wrist splints,
and “a prescription for a computer rest.” A November 1995 EMG performed at Dr. Jones’ request
revealed “a very slight carpal tunnel on the right, normal on the left.” During Love’s last visit in
February 1996, however, Dr. Riley noted that she was “doing much better” and was “having no real
pain.”
Joseph C. Boals, III, another orthopedic surgeon, testified that he treated Love at the
Office of Bone and Joint Surgery beginning in April 1996. At that time, Love related generalized
complaints of “wrist pain and numbness consistent with carpal tunnel syndrome,” as well as
complaints of “forearm soreness” and “tenderness in the posterior left shoulder and into her neck.”
Dr. Boals diagnosed Love has having (1) incidental finding of mild cervical arthritis, (2) incidental
finding of AC joint arthritis, (3) subacute pericapsulitis left shoulder, and (4) suspect bilateral carpal
tunnel syndrome. An EMG performed on Love confirmed that she had mild carpal tunnel syndrome
on both sides. Dr. Boals initially treated Love’s condition with a diuretic and night splints.
Ultimately, however, Dr. Boals recommended surgery to release the transverse carpal ligament on
Love’s right side. This surgery was performed in December 1996 by Dr. Boals’ partner, Dr.
Owen B. Tabor. Dr. Tabor’s notes indicated that, prior to the surgery, he warned Love that the
surgery would “not reliably help any of her more proximal arm or shoulder pain.”
After the surgery, Love developed deQuervain’s tendinitis in her left hand, apparently
because of her increased use of the left hand. Love later developed deQuervain’s tendinitis in her
right wrist as well. Dr. Boals and Dr. Tabor were able to treat Love’s tendinitis condition, but they
cautioned Love that the condition might return if she used her hands repetitively. Love also
complained to Dr. Tabor “of aching pain in her arms primarily in the proximal forearm and elbow
with some radiation on the extensor aspect of the forearm to the hand and some proximal radiation
to about the mid third of the humerus.” It was Dr. Tabor’s impression that Love was suffering from
a variety of ailments, including (1) tenomyositis proximal forearm, left and right, non-specific,
(2) lateral epicondylitis, left and right elbow, and (3) neuralgia upper extremities, poorly localized.
During the remainder of her treatment by Dr. Boals and Dr. Tabor, Love continued
to complain of pain, and she also experienced a decrease in her grip strength. Dr. Boals
acknowledged that surgery to release the transverse carpal ligament surrounding the median nerve
usually eliminated the numbness and pain associated with carpal tunnel syndrome. Dr. Boals also
testified, however, that in eighty percent (80%) of cases, the surgery resulted in about a ten
percent (10%) loss in grip strength.
In March 1997, Dr. Tabor noted that Love was nearing maximum medical
improvement. Dr. Tabor estimated Love’s permanent physical impairment “reflecting mild residual
weakness in the hand to be 3% of the right upper extremity.” In April 1997, Dr. Boals agreed that
Love had reached maximum medical improvement. Dr. Boals estimated Love’s permanent physical
impairment to be ten percent (10%) for each upper extremity. Dr. Boals explained that the right-side
impairment was “for grip strength loss” while the left-side impairment was for “a documented
median nerve entrapment.” According to Dr. Boals, this figure translated into an impairment rating
of six percent (6%) for the body as a whole. As for the extent of Love’s vocational disability, Dr.
Boals “did not feel [Love] could return to work in view of the pain she was having on using the
hands repetitively.” Dr. Boals believed that “the only job [Love] could qualify for was one wherein
the hands were not used at all,” and he recommended that Love apply for disability if such a position
was not available in her workplace.
On June 17, 1997, Dr. Riley Jones reevaluated Love’s condition at the County’s
request. Noting inconsistencies between Love’s complaints of pain and his own observations during
the physical examination, Dr. Jones sent Love to Dr. Paul Cunningham to have another EMG
performed. The results of the EMG, which was performed June 24, 1997, indicated that both upper
limbs were within normal limits. Because the EMG revealed no electrodiagnostic evidence of carpal
tunnel syndrome, Dr. Jones concluded that Love had no physical impairment as a result of this
syndrome. In contrast to Dr. Boals’ testimony, Dr. Jones testified that the pertinent AMA Guidelines
did not provide for an impairment rating for grip strength loss associated with carpal tunnel
syndrome. As for Love’s ability to use her upper extremities, Dr. Jones testified that:
Based upon the physical examination that I did when I saw her
in June [1997] I don’t find anything to keep her from doing much of
anything. I didn’t find anything that was limiting.
Orthopedic surgeon Paul H. Williams examined Love on June 19, 1997, also at the
County’s request. Dr. Williams initially reported that:
My opinion is that [Love] is unable to do the duties of a
secretary or a Shelby County Court employee which has to lift heavy
books, operate a computer, and use typewriters. She is not capable of
using her hands and upper extremities for repetitive duty. I
recommend that she retire from her present occupation. I do not have
any therapeutic recommendations to make currently.
Dr. Williams later was provided with the results of the June 24, 1997, EMG performed on Love.
After reviewing the EMG results, Dr. Williams changed his opinion as to Love’s level of
impairment. Dr. Williams still believed that Love had some level of impairment, but he testified
that:
I think she can do secretarial work. I don’t believe, though,
that . . . she ought to . . . have to lift forty and fifty pound books.
....
I believe she is capable of doing other facets of secretarial
work.
As for the apparent conflict between Dr. Williams’ initial findings and the negative EMG results,
Dr. Williams explained that:
I thought she didn’t have significant carpal tunnel syndrome
but I thought that . . . my findings and her opinions to me were not
totally bogus because she still had some numbness of the palmar
aspect of the right thumb and index finger but because [of] the EMG
studies I didn’t think she had significant evidence that she had
residual carpal tunnel but she . . . did have some evidence of it.
Another medical doctor, Robert P. Christopher, reviewed Love’s medical reports in
July 1997, but he did not physically examine Love. Dr. Christopher initially reported that:
[Love] shows evidence of chronic intractable pain in both upper
extremities secondary to chronic neuritis. I cannot conceive of any
work that she could do that would not require upper extremity
function.
For the above reasons, I recommend that she be retired on disability.
After receiving the results of Love’s June 24, 1997, EMG, Dr. Christopher concluded that Love’s
problems did not result from carpal tunnel syndrome or peripheral neuropathy. Dr. Christopher
recommended that Love be seen by a rheumatologist for evaluation of the tenomyositis previously
observed by Dr. Tabor.
In its final judgment, the trial court awarded Love $8,249.12 in temporary disability
benefits, $7,798.10 in medical expenses, and $107,944 in permanent disability benefits. With regard
to its award of permanent benefits, the trial court found:
That [Love] has sustained 100% permanent-partial disability
to each of her arms as a result of the injuries alleged herein and that
[Love] should accordingly have judgment against [the County] in an
amount representing Two Hundred (200) weeks for each arm for a
total of Four Hundred (400) weeks of permanent-partial disability.
[Love] was being paid Eight Hundred Seventy Seven
Dollars ($877.00) twice a month (gross) at the time of the reported
injury herein on September 13, 1994 which would equate to an
average weekly wage of Four Hundred Four and 77/100's
Dollars ($404.77) and a weekly compensation rate of Two Hundred
Sixty Nine and 86/100's Dollars ($269.86) resulting in a judgment
against [the County] for this permanent-partial disability in the total
amount of One Hundred Seven Thousand Nine Hundred Forty Four
Dollars ($107,944.00).
On appeal, the County challenges only the trial court’s award of $107,944 in
permanent disability benefits. Specifically, the County contends that the award is excessive and that,
despite Love’s continued complaints of pain, the medical proof presented below “does not support
or substantiate an award that amounts to one hundred percent disability.”
We conclude that this argument is without merit. In fixing the extent of Love’s
disability, the trial court was not limited to the estimates of anatomical impairment provided by the
medical experts. Bailey v. Knox County, 732 S.W.2d 597, 597 (Tenn. 1987). As our supreme court
has explained,
In considering [the issue of the extent of the employee’s disability] it
must be kept in mind that this Court makes a clear distinction in
worker’s compensation cases1 between anatomical impairment as
determined by a physician and disability to work which results from
such impairment. Federated Mut. Implement & Hardware Ins.
Co. v. Cameron, 220 Tenn. 636, 422 S.W.2d 427 (1967). In
Cameron this Court recognized that in determining what may
constitute permanent and total disability many pertinent factors
should be considered, including the skills, education and training of
the employee as well as job opportunities and other factors bearing
upon employability. In determining the sufficiency of the evidence
to support a finding of disability under the act, once permanency and
causation are established by medical testimony, . . . the extent of such
disability may be determined from lay testimony and from other
evidence as well as from medical evidence. Kellwood Co. v. Gibson,
Tenn., 581 S.W.2d 645 (1979). In such cases the trial judge is not
bound to accept physicians’ opinions of the extent of the employee’s
disability but is entitled to determine the extent of disability from all
of the evidence, both expert and non-expert. Trane Co. v. Morrison,
Tenn., 566 S.W.2d 849 (1978); Employers Ins. Co. of Alabama v.
Heath, Tenn., 536 S.W.2d 341 (1976).
Hinson v. Wal-Mart Stores, Inc., 654 S.W.2d 675, 677 (Tenn. 1983) (footnote added); accord
Griffin v. Memphis Community Television Found., 748 S.W.2d 87, 89 (Tenn. 1988).
In fact, “while expert testimony may be used to establish vocational disability, it is
not required.” Perkins v. Enterprise Truck Lines, Inc., 896 S.W.2d 123, 127 (Tenn. 1995). “The
extent of vocational disability can be established by lay testimony.” Id. In this regard, the
“employee’s own assessment of her physical condition and resulting disability is competent
1
Shelby County has not elected to accept the provisions of the Tennessee Workers’
Compensation Law, but the County has its own on-the-job injury policy under which it uses the
Workers’ Compensation Law as a guide. See T.C.A. § 50-6-106(5) (1991).
testimony that should be considered.” Collins v. Howmet Corp., 970 S.W.2d 941, 943 (Tenn. 1998).
Of the three experts who testified in the present case, only one expert testified that
he rated Love as having no impairment. Another expert opined that, while Love had some
unspecified level of impairment, she could perform most of her former duties, with the exception
of lifting heavy books. The testimony of the third expert, however, differed significantly from that
of the other two. Dr. Boals assigned Love an impairment rating of ten percent (10%) for each upper
extremity and six percent (6%) for the body as a whole. Dr. Boals testified that Love could not
return to work because she experienced pain when she used her hands repetitively. According to Dr.
Boals, Love could perform a job only if it did not involve use of the hands “at all.”
Dr. Boals’ testimony was supported by the lay testimony of Love, her husband, and
her coworkers. Love testified that her condition caused her pain on a daily basis and that it prevented
her from performing routine tasks which she once took for granted. Love further testified that she
could no longer perform the duties of her job, such as operating a computer or typewriter, lifting
docket books, and even using a stapler. This testimony was corroborated by that of her husband and
coworkers, who observed Love experience difficulty in performing routine job duties and household
chores. At the time of trial, Love was fifty-three years of age and possessed a high school (GED)
education. Her prior work experiences were primarily clerical. Under these circumstances, we
conclude that the evidence supports the trial court’s finding of a 100% permanent disability to each
arm. See, e.g., Collins v. Howmet Corp., 970 S.W.2d 941, 943-44 (Tenn. 1998); Hinson v. Wal-
Mart Stores, Inc., 654 S.W.2d 675, 677 (Tenn. 1983).
The trial court’s judgment is affirmed, and this cause is remanded for further
proceedings consistent with this opinion. Costs of this appeal are taxed to the County, for which
execution may issue if necessary.
____________________________________
FARMER, J.
______________________________
CRAWFORD, P.J., W.S. (Concurs)
______________________________
HIGHERS, J. (Concurs)