Eileen Smith v. Shelby Co. Government ( 1997 )

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT JACKSON
______________________________________________________________________________
EILEEN SMITH, Shelby Chancery No. 10615-1
C.A. No. 02A01-9701-CH-00024
Plaintiff,
Hon. Neal Small, Judge
v.
SHELBY COUNTY GOVERNMENT,
FILED
Defendant.
September 08, 1997
DAVID A. E. LUMB, Memphis, Attorney for Plaintiff.
Cecil Crowson, Jr.
Appellate C ourt Clerk
CARROLL C. JOHNSON, Memphis, Attorney for Defendant.
AFFIRMED
Opinion filed:
______________________________________________________________________________
TOMLIN, Sr. J.
Eileen Smith (hereafter “Plaintiff”) filed suit against Shelby County Government
(hereafter “Defendant”) in the Chancery Court of Shelby County seeking to recover
benefits for an injury she sustained while em ployed by the Shelby County Health Care
Center, a division of Defendant. Following a bench trial the chancellor found that
Plaintiff had sustained an injury that arose out of and in the course of her employment
and awarded her 60% disability to her right arm, along with additional compensation
for discretionary costs and attorney fees. Defendant has presented two issues on
appeal: W hether the trial court erred in 1) finding that Plaintiff sustained a com pensable
injury that arose in the course of her employm ent; and 2) in aw arding Plaintiff a
permanent vocational disability rating of 60% to the right arm. For the reasons
hereinafter stated, we find no error and affirm.
The basic facts are not in dispute. Plaintiff, who had a bachelor’s degree in
social work and twenty years experience in that field, was an employee of Defendant
when she was injured. Plaintiff testified that the injury occurred when she was assisting
a resident patient of the center in removing one of several articles of clothing. During
the course of this operation the patient moved her body, causing a jerking force on her
arm. Plaintiff noticed that her wrist was swelling and reported the injury to her
supervisor. Shortly thereafter, Defendant’s in-house physician exam ined Plaintiff’s
hand and advised her to report to the emergency room, where x-rays were taken. At
that time her hand was placed in a splint, her arm placed in a sling and she was given
medication for pain. She w as advised not to return to work immediately.
Plaintiff continued to suffer pain and cramping in her wrist. She stated that her
position as a social w orker required extensive writing. Her inability to continue to
write without pain posed a serious im pediment to her perform ing her job effectively.
Plaintiff continued to attempt to do her job, including writing left-handed and typing
her notes. Both of these were deemed unacceptable by her supervisor. She continued
to work until December 1994, at which time she remained absent from work because of
her injury until March 1995.
After extensive attempts at rehabilitation, Plaintiff was sent to Dr. E. B.
Wilkerson, Jr., an orthopedic surgeon, for examination and treatment. After examining
Plaintiff and perform ing an arthrogram on her wrist, which revealed an extensive tear in
the fibrocartilage of Plaintiff’s right wrist, Dr. Wilkerson performed surgery in an
attempt to repair the damaged fibrocartilage. Following surgery, Dr. Wilkerson
testified that the nature of the injury was not consistent with the description of the way
that Plaintiff said she was hurt and voiced the opinion that a degenerative condition in
the structure of her cartilage was the problem rather than the injury. After performing
numerous tests and range of motion studies, Dr. Wilkerson was of the opinion that
Plaintiff had reached maximum m edical improvement, and gave her a permanent
disability rating of 14% to the right arm. At that time he released her from his care.
In March 1996 after releasing Plaintiff from his care, Dr. Wilkerson completed a
standardized report entitled “Tennessee Department of Labor Division of Worker’s
Compensation Standard Form Medical Report on Injuries.” In this report he detailed
Plaintiff’s injuries. The report contained the following question:
“Considering the nature of Claimant’s occupation and medical
history along with diagnosis and treatment, does this injury more
probably than not arise out of the claimant’s employment?”
Dr. Wilkerson answered “yes” to the above question.
After continuing to experience pain in her right wrist Defendant’s risk
2
management department sent Plaintiff to Dr. Neil Aranov, a clinical
psychologist, to determine if there were any psychological factors resulting from
her work-related injury that were impairing her recovery and return to the
workforce. In his deposition Dr. Aranov testified that Plaintiff suffered from a
psychological condition referred to as “adjustment disorder with associated
anxiety with depression” which was directly caused by Plaintiff’s work-related
injury. Dr. Aranov’s prescribed treatment plan was unsuccessful and after three
separate visits with Plaintiff he terminated the treatment. This suit ultimately
followed.
While Defendant as a governmental agency is not covered by the
Tennessee Workers Compensation Act, it does have a policy where it
compensates for on-the-job injuries, using the Tennessee Workers Compensation
Act as a guideline. Following a bench trial the court found that Plaintiff was
entitled to 60% disability of the right arm, entitling her to receive weekly
payments of $257.00 for 120 weeks amounting to $30,814.00, along with
discretionary costs of $386.29 and approved attorney fees in the amount of
$6,172.80. This appeal followed.
Our scope of review is de novo upon the record in the trial court. All
findings of fact by the trial court come to this court with a presumption of
correctness, and, absent an error of law, unless we find that the evidence
preponderates against these findings we must affirm. T.R.A.P. 13(d).
The first issue we address is whether or not the trial court was in error in
finding that Plaintiff’s injury occurred in the course and scope of her
employment. The record does reflect that the deposition testimony of Dr.
Wilkerson was to the effect that the pain described by Plaintiff came from an
area of her wrist that would not have resulted from an injury like the one that she
received and that following the surgery he was of the opinion that the injury
resulted from a degenerative “wear and tear.”
Notwithstanding this testimony, the record reveals that Dr. Wilkerson signed
3
at least five different reports to Defendant stating that Plaintiff’s injuries arose out
of her employment. Four of these reports were filed by Dr. Wilkerson after he
had performed the surgery on Plaintiff’s wrist. We already noted that the final
report filed by Dr. Wilkerson affirmed that Plaintiff’s injury, more probably than not
arose out of her employment.
There is ample lay testimony by Plaintiff from which the trial court could
reasonably infer that a tear of the fibrocartilage of her right wrist was a direct
result of Plaintiff’s employment by Defendant. A trial court may properly
predicate a workers’ compensation award on medical testimony that a given
accident “could be” the cause of an injury, if there is also lay testimony from
which it may reasonably be inferred that the incident was the cause of the
injury. P & L Construction Co., Inc. v. Lankford, 559 S.W.2d 793 (Tenn. 1978). This
issue is without merit.
The second and final issue is whether the trial court erred in awarding
Plaintiff a permanent vocational disability rating of 60% to the right arm. In Clark
v. National Union Fire Ins., 774 S.W.2d 586, 589 (Tenn. 1989) our supreme court
stated that in order to determine the extent of vocational disability the trial court
must consider all of the pertinent factors, including job skills, education, training,
duration of disability, job opportunities, in addition to the anatomical disability
testified to by the medical experts. Clark at 598. Furthermore, in determining the
amount of vocational disability incurred by the employee, the trial court should
also consider the employee’s own assessment of her physical condition and
resulting disabilities. Id. The employee’s testimony is probative in establishing
such conditions as the existence of pain, its location and the employee’s
inability to work. Id. In addition to the proof heretofore considered, we note
that Dr. Aranov testified that although there was no psychiatric disability present
in Plaintiff, she was “not malingering” and that she suffered from an adjustment
disorder with associated depression and anxiety directly resulting from her work-
related injury.
4
Plaintiff testified that she continued to suffer pain and cramping in her right
hand following the numerous and repeated attempts to alleviate these
problems. She further testified that her disability resulted in a reduction in her
ability to grip objects as well as a general reduction in the dexterity of her right
hand. Her training and employment experience have been limited to the area
of social work for the past twenty years. The evidence also reflects that Plaintiff
subsequently found another job as a social worker following six months of
unemployment and that her present employment has been affected by her
disability to the extent that it requires her to work many hours more per week to
perform duties that she normally would complete in a forty hour work week. In
sum, we are of the opinion that the evidence does not preponderate against
the findings of the trial court concerning the extent of her permanent disability.
This issue is also without merit.
Accordingly, the judgment of the trial court is affirmed in all respects.
Costs in this cause on appeal are taxed to Defendant, for which execution may
issue if necessary.
__________________________________________
TOMLIN, SR. J.
__________________________________________
CRAWFORD, P. J. W.S. (CONCURS)
__________________________________________
HIGHERS, J. (CONCURS)
5