Misty Michelle Glisson v. Mohon International, Inc./Campbell Ray

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
November 9, 2005 Session
MISTY MICHELLE GLISSON v. MOHON INTERNATIONAL,
INC./CAMPBELL RAY
Direct Appeal from the Circuit Court of Henry County
No. 1941, Julian P. Guinn, Judge
No. W2004-01588-SC-R3-CV - Filed March 13, 2006
The employer in this workers’ compensation action has appealed from a judgment of the Circuit
Court of Henry County finding that the employee suffered a work-related back injury. The trial court
awarded the employee benefits based on 30% permanent partial disability to the body as a whole.
The employer contends on appeal that the medical proof, which does not include any medical
testimony, is insufficient to establish a causal connection between the employee’s injury and her
employment. The dispositive question before this Court is whether the evidence preponderates
against the trial court’s finding that the employee’s injury arose out of her employment. We
conclude that the record and applicable law support the trial court’s decision to award benefits. We
further hold that a local rule of the 24th Judicial District which prohibits the taking of medical
depositions in workers’ compensation cases absent leave of court is invalid. The trial court’s
judgment is affirmed.
Tenn. Code Ann. § 50-6-225(e); Judgment of the Circuit Court Affirmed
ADOLPHO A. BIRCH , JR., J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J.,
E. RILEY ANDERSON , JANICE M. HOLDER , and CORNELIA A. CLARK, JJ., joined.
Mark C. Travis, Cookeville, Tennessee, for the appellant, Mohon International, Inc./Campbell Ray.
Robert T. Keeton, III, Huntingdon, Tennessee, for the appellee, Misty Michelle Glisson.
OPINION
Factual and Procedural Background
The employee, Misty Glisson, age twenty-five, began working for the employer, Mohon
International, Inc./Campbell Ray, in January 2000. The employee, whose job involved making
furniture, operated a saw in the employer’s plant. Her duties required her to lift large pieces of wood
and place them on a conveyor. The employee quit high school in the tenth grade but later obtained
her GED. Her work history has been primarily in manual labor.
The employee testified that in December 2000, she was in the process of flipping a sheet of
laminate paneling with another employee when the panel “pulled [her] over” and she fell to the
ground in pain, unable to get up. A co-worker, Wahnetah Calorio, testified that she was helping the
employee flip the panel, which weighed seventy-five to eighty pounds, when the employee injured
her back and fell to the floor. Both the employee and Calorio testified that the employee
immediately reported the injury to Kara Evans, a supervisor, who had been summoned to the scene.
Evans advised the employee to get up and "walk it off" and indicated that she would be back later
to complete an accident report. A first report of injury form was not completed, however, until
November 16, 2001, after the employee filed suit. The form states that the employee injured her
back bending over to pick up a board.
The employee first sought medical treatment for her back injury on December 28, 2000, from
her family physician, Terry Harrison, M.D.1 Harrison treated the employee from December 2000
to July 2001. The employee reported to Harrison that she was having back pain which radiated down
her left leg. The first note in Harrison’s records concerning the employee’s back injury states in part:
“Back inj. 2 weeks ago.”2 In a subsequent note, Harrison stated that the employee lifts
approximately 100 lbs at work. I do think this is a little heavy for her; she only
weighs 127 lbs. I think most of her back pain is related to her job; we did discuss this
thoroughly. I did ask her to request a transfer to another job within the plant that
doesn’t require such heavy lifting.
Harrison’s assessment of the employee’s condition was “lower back pain, chronic.” Harrison
referred the employee to B. Martin Fulbright, M.D., for further evaluation and treatment.
From August 2001 to November 2001, the employee was treated by Fulbright, an orthopedic
surgeon. Fulbright gave the employee work excuses which stated that she had been absent from
work for treatment of a “Non-Occupational Injury/Illness.” One of the work excuses indicates that
the employee had a herniated disk. Records from Henry County Orthopedic Surgery and Sports
Medicine, Inc. (the name of Fulbright’s practice) contain the following notation: “[The employee]
states that she has had pain in December and has had pain ever since and now has pain up and down
the left side of her back.” These records further indicate that the employee had “significant pain,”
made worse by her “heavy duty job.” An MRI was performed, which revealed a herniated disk. A
1
The employer’s human resources director, Jeremy Phillips, testified that the employer did not offer any medical
treatment to the employee because the employer did not realize that the employee injured herself at work. Kara Evans,
the supervisor whom the employee and Ms. Calorio testified advised the employee to get up and "walk it off," did not
testify at trial.
2
The parties stipulated to the introduction of the employee’s medical records. These medical records comprise
the sum total of the medical proof.
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note dated September 24, 2001, states that “at this time I [Dr. Fulbright] will keep her off work for
fear of further injuring her back.”
The employee was then referred to the West Tennessee Rehab Group. The medical records
of the West Tennessee Rehab Group reflect that “back in December of last year, [the employee]
started having a lot of problems at work when she twisted and hurt her back.” These records further
indicate that the employee had a severely ruptured disk.
As part of the employee’s treatment, she underwent a nerve root block. An October 4, 2001,
Admission History and Assessment form from the Jackson-Madison County General Hospital where
the procedure was performed reflects that the employee “hurt [her] back at work by bending over."
The nerve root block did not alleviate the employee’s back pain. She continued to seek medical
treatment on her own.
On October 9, 2001, the employee applied for short-term disability through the employer. In
the part of the application titled “Employee Section,” a question—“Is disability due to your
occupation”—was not answered. In another part of the application titled “Employer Section,” a
question—“Did accident/illness arise out of or in the course of any employment for wages or
profit”—was answered “No.” The application indicates that the employee had experienced back pain
since December 2000.
Beginning in November 2001, Keith Williams, M.D., undertook the employee’s care.
Williams’ records reflect in pertinent part:
This is a 23 year old white female who states she was at work about 10 months ago
in December of 2000 when she was trying to pick up a piece of 8 by 10 plywood and
her back went out. Another employee had to help her up. She notified her supervisor
who didn’t take any action and told her to walk it off. Over the course of the next
couple of weeks she continued to have pain which worsened. Her supervisor,
according to her, did not fill out an incident report and they would not refer her to a
physician. She went to her primary care physician on her own. Over the course of the
next six months, the primary care physician treated her with multiple different
medications and at least four, possibly five, Medrol Dose Paks. After about seven
months of continued pain in her left leg, she asked her primary care doctor to refer her
to another doctor. She referred her to Dr. Fulbright. Dr. Fulbright is an orthopedic
surgeon in Paris, Tennessee. He assessed her as having radicular pain in her left
lower extremity and ordered an MRI which demonstrated a central disc. He referred
her to Dr. Chung who did an epidural injection which did not help her pain. So she
now presents to our office for follow-up. Ms. Glisson is now approximately 10
months out from her initial injury. She states she is worse now than she was six
months ago, unchanged from how she was one month ago.
Williams diagnosed the employee as having a herniated disk and performed corrective
surgery. Post-operatively, on January 18, 2002, Williams noted:
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Overall, [the employee] is doing well. Her leg pain has been resolved. She is
encouraged to continue her walking and exercise program. She should return to see
me in about six weeks. She remains off work from any heavy lifting at this time. She
is considering a change of occupation to a less strenuous position which I think would
likely help her in the long run.
Williams gave the employee an anatomical impairment rating of 12% to the body as a whole.
In a March 27, 2002 letter to the employee’s attorney, Williams advised that the employee had been
released to work but reiterated that she had not been released to her previous heavy lifting. Williams
confirmed that he had encouraged the employee “to refrain from returning to her usual work due to
the heavy lifting.”
After considering the evidence as outlined above, the trial court found that the employee
sustained a work-related injury to her back in December 2000. The trial court determined that the
employee’s injury resulted in a 30% permanent partial disability to the body as a whole. The trial
judge observed that the employee “does impress the court with her veracity.” The employer appealed.
The employer’s appeal was heard by the Special Workers’ Compensation Appeals Panel.
During oral argument before the Appeals Panel, counsel for the parties indicated that a local rule in
the 24th Judicial District requires that parties obtain permission of the court to take medical
depositions in workers’ compensation cases. The record was later supplemented to include the local
rule, which was a standing order dated April 18, 1996. The order states in pertinent part:
Cases not resolved at the Benefit Review Conference will be promptly set for trial on
the same medical records and evidence brought before the Benefit Review Specialist,
unless good cause exists for the taking of additional proof. Testimony of health care
providers may be taken by deposition for introduction at trial upon application to the
Court and a showing of what information can be obtained by such testimony that is
not presently in the record or otherwise available by less expensive means such as
correspondence.
The appeal was transferred to the full Supreme Court prior to the Appeals Panel rendering a decision.
Standard of Review
We must review the trial court's findings of fact in a workers' compensation action de novo
upon the record of the trial court, accompanied by a presumption that these findings are correct unless
the preponderance of the evidence is otherwise. Tenn. Code Ann. § 50-6-225(e)(2) (2005). In
reviewing documentary proof, we need not extend the same deference to the trial court's findings as
required for issues involving the credibility and weight of oral testimony. See Saylor v. Lakeway
Trucking, Inc., 181 S.W.3d 314, 322 (Tenn. 2005) (citing Lang v. Nissan N. Am., Inc., 170 S.W.3d
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564, 569 (Tenn. 2005)). Ultimately, we must conduct an independent review of the evidence to
determine where the preponderance of the evidence lies. See Cleek v. Wal-Mart Stores, Inc., 19
S.W.3d 770, 773-74 (Tenn. 2000).
Analysis
To be compensable under the workers’ compensation statutes, an injury must arise out of and
occur in the course of the employment. Tenn. Code Ann. § 50-6-102(13) (1999). These statutory
requirements are not synonymous, “although both elements exist to ensure a work connection to the
injury for which the employee seeks benefits.” Blankenship v. Am. Ordnance Sys., 164 S.W.3d 350,
354 (Tenn. 2005). An injury occurs in the course of employment if it takes place while the employee
was performing a duty he or she was employed to perform. Fink v. Caudle, 856 S.W.2d 952, 958
(Tenn. Workers’ Comp. Panel 1993) (citing Williams v. Preferred Dev. Corp., 452 S.W.2d 344, 345
(Tenn. 1970)). Thus, the course of employment requirement focuses on the time, place, and
circumstances of the injury. Saylor, 181 S.W.3d at 318.
In contrast, “arising out of employment” refers to causation. Reeser v. Yellow Freight Sys.,
Inc., 938 S.W.2d 690, 692 (Tenn. 1997) (citing Braden v. Sears, Roebuck & Co., 833 S.W.2d 496,
498 (Tenn. 1992)). An injury arises out of employment when there is a causal connection between
the conditions under which the work is required to be performed and the resulting injury. Fritts v.
Safety Nat'l Cas. Corp., 163 S.W.3d 673, 678 (Tenn. 2005) (citing Phillips v. A & H Constr. Co., 134
S.W.3d 145, 150 (Tenn. 2004)). The mere presence of the employee at the place of injury because
of the employment is not enough, as the injury must result from a hazard peculiar to the work or be
caused by a risk inherent in the nature of the work. Blankenship, 164 S.W.3d at 354 (citing Thornton
v. RCA Serv. Co., 221 S.W.2d 954, 955 (Tenn. 1949)).
In this case, there is no dispute that the employee’s back injury occurred in the course of her
employment. Rather, the dispute focuses on whether the injury arose out of the employment. In
resolving this question, we note that except in the most obvious cases, causation must be established
through medical evidence. Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn. 1991).
Although causation cannot be based upon speculative or conjectural proof, absolute medical certainty
is not required, and reasonable doubt must be resolved in favor of the employee. Long v. Tri-Con
Indus., 996 S.W.2d 173, 177 (Tenn. 1999) (citing Hill v. Eagle Bend Mfg., 949 S.W.2d 483, 487
(Tenn. 1997)). Thus, benefits may be properly awarded to an employee who presents medical
evidence showing that the employment could or might have been the cause of his or her injury when
lay testimony reasonably suggests causation. See Clark v. Nashville Mach. Elevator Co., 129 S.W.3d
42, 47 (Tenn. 2004).
Guided by these principles, we turn to an analysis of the present case. The employer argues
that the trial court erred in finding that the employee established her injury to be work-related. The
employer contends that the record is devoid of any medical proof establishing a causal connection
between the employee’s injury and her duties at work. The employer maintains that the medical
records introduced into evidence establish only the histories provided by the employee to her treating
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physicians and the treatment rendered by those physicians. The employer therefore urges this Court
to reverse the trial court’s award of benefits.
The medical evidence in this case consists entirely of the employee’s medical records. Unlike
most workers’ compensation cases to come before this Court, there are no depositions of medical
experts. Nor is there a C-32 medical report.3 It seems to us that proceeding on the medical records
alone is a risky and uncertain approach to litigating a workers’ compensation case and, as this case
demonstrates, may actually be more costly than if the parties had taken medical testimony.4 Indeed,
this appeal probably would have been unnecessary had medical testimony been taken or had a C-32
form been introduced into evidence.
The extent to which the parties’ strategies to proceed without medical testimony were shaped
by the procedure applied in the 24th Judicial District is not clear from the record. It is clear, however,
that the local rule requiring leave of court to take medical testimony is contrary to Rule 30.01 of the
Tennessee Rules of Civil Procedure. Rule 30.01 states that “any party may take the testimony of any
person . . . by deposition upon oral testimony. Leave of court . . . must be obtained only if the
plaintiff seeks to take a deposition” within 30 days of service of the summons and complaint or if the
deponent is an inmate. Workers’ compensation cases are not among those cases requiring leave of
court under Rule 30.01. Moreover, according to Tennessee Supreme Court Rule 18(c), “any local rule
that is inconsistent with a statute or a procedural rule promulgated by the Supreme Court shall be
invalid.” Rule 30.01 of the Tennessee Rules of Civil Procedure is a “procedural rule promulgated by
the Supreme Court.” Thus, the local rule at issue in this case is void.
Aside from the legality of the procedure used in the 24th Judicial District, we have carefully
reviewed the record and are persuaded that the evidence does not preponderate against the trial court’s
finding that the employee’s back injury arose out of her employment. The employee testified, without
contradiction, that in December 2000 she was in the process of flipping a piece of wood, which
weighed seventy-five to eighty pounds, when it “pulled [her] over” and she fell to the ground in pain,
unable to get up. A co-worker who witnessed the incident, Wahnetah Calorio, corroborated the
employee’s testimony. Further, the employee’s medical records reflect that she gave consistent
histories to her health care providers about when and how she hurt her back. The trial judge believed
the employee’s account of what happened, commenting that the employee “does impress the court
3
Tennessee Code Annotated section 50-6-235(c)(1)-(2) (2005) states that:
(1) Any party may introduce direct testimony from a physician through a written medical report on a
form established by the commissioner of labor and workforce development. . .
(2) The written medical report of a treating or examining physician shall be admissible at any stage
of a workers' compensation claim in lieu of a deposition upon oral examination. . . .
Thus, parties are permitted to use a medical report, commonly referred to as a C-32 form, in lieu of depositions as
evidence at trial.
4
At oral argument before the Special W orkers’ Compensation Appeals Panel, the employee’s attorney admitted
that he could have obtained a C-32 form or a physician opinion letter but chose not to because of the costs involved.
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with her veracity.” Moreover, the record contains the employee’s medical records, which reflect Dr.
Harrison’s opinion that the employee’s back condition was work-related. Specifically, Dr. Harrison
stated in his notes that “I think most of [the employee’s] back pain is related to her job; we did discuss
this thoroughly.” The employer presented no contrary medical proof. The employer did elicit an
admission from the employee that she had gone to a hospital emergency room in November 2000
complaining of injuries sustained while lifting a dresser at home. However, the employee explained,
without contradiction, that this November 2000 injury had affected her side, not her back.
In sum, there is nothing in the record linking the employee’s back injury with any cause other
than the lifting incident at work in December 2000. Although the evidence of causation is not
overwhelming, we conclude that the lay testimony in conjunction with the medical evidence is
sufficient to establish a causal relationship between the employee's work activities and her back
injury. To the extent that any reasonable doubt may exist on this point, we construe it in the
employee's favor. Clark, 129 S.W.3d at 50. We are inclined to reiterate, however, that relying upon
an employee’s medical records alone is a precarious–if not unwise–way to proceed in a workers’
compensation case. Indeed, counsel for the employee stated at oral argument that this case “was not
the best tried case.” We agree.
Conclusion
For the reasons stated above, we conclude that the local rule of the 24th Judicial District
prohibiting medical depositions absent leave of court is invalid. We further hold that the evidence
and applicable law support the trial court’s finding that the employee’s back injury arose out of her
employment. Accordingly, the trial court’s judgment is affirmed. Costs of appeal are assessed
against the appellant, Mohon International, Inc./Campbell Ray, and its surety, for which execution
may issue if necessary.
ADOLPHO A. BIRCH, JR., JUSTICE
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