Opinion
No. W2004-02956-WC-R3-CV.
December 8, 2005 Session. Mailed March 30, 2006.
Filed May 2, 2006.
Appeal from the Circuit Court for Madison County, Tennessee; No. CO2-222; Hon. Roger A. Page, Judge.
Judgment of the Circuit Court is Reversed; Remanded.
Stephen F. Libby, Memphis, Tennessee, for the Appellant, Stacey Bold.
Richard H. Allen, Jr. and Kevin W. Washburn, Memphis, Tennessee, for the Appellees, Sonoco Products Company and GAB Robins of North America, Inc.
Robert E. Corlew, SP. J., delivered the opinion of the court, in which Janice M. Holder, J., and Allen W. Wallace, Sr. J., joined.
MEMORANDUM OPINION
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Tennessee Supreme Court in accordance with the provisions of Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The Employee has appealed the findings of the trial court, which determined that the Employee's claim was not compensable because she failed to establish a causal connection between her cervical injury and her employment. We conclude that the evidence is sufficient to establish causation. Therefore, we reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.
The issue in this cause is the question of causation of an injury. The facts surrounding this cause are somewhat unusual. It is undisputed that the Employee, Stacey Bold, was employed by the Employer, Sonoco Products Company, on a production line as a "PSO Operator" making cans to be used as containers for Pringles brand potato chips. The duties of such an employee are to insure that a quantity of "overcaps" remain in a "bowl feeder" and that other products such as "lidding," "wax," and "shells" do not run out, so that the production line will not be stopped. Further, it is undisputed that on August 24, 2001, the Employee filed a written report of an injury while working within the course and scope of her employment for the Employer. She reported that she first experienced sharp pain in her upper shoulder on or about May 1, 2001. She reported that the pain involved her shoulder, biceps, right elbow and arm, wrist, and fingers. She reported that the injury occurred when she was "picking up trays of overcaps and tilting it over into bowl feeder."
The Employee testified about this event and stated she first experienced right shoulder pain, but, feeling the injury was not serious, she did not make an immediate report nor did she cease her duties. The pain ultimately radiated into her arm, hand, and fingers. The Employee treated her pain for several weeks with a heating pad and over-the-counter ointments and cremes without any improvement in her condition, and then on July 26, 2001, the Employee sought treatment from her family physician, who diagnosed her with carpal tunnel problems and tendinitis. The physician indicated to the Employee that those injuries might be work-related, and the Employee then made an oral report to her supervisor of that diagnosis. The Employee testified that she had told her physician that she had an arm injury because the arm is where she felt the pain.
Instead of providing to the Employee a panel of physicians which the law requires when a workers' compensation injury is reported, the Employer provided to her the name of a company doctor. An appointment was made with the company physician, and the Safety Coordinator for the Employer went with the Employee to see that physician. This physician, Dr. Kenneth Warren, made a referral to another doctor for nerve conduction tests, but the appointment was cancelled, apparently by the Employer. Subsequently, a panel was provided to the Employee, and the Employee selected a physician who examined her. This physician again ordered tests to be performed. An MRI conducted on February 20, 2002, showed that the Employee had suffered from a cervical problem. The Employer denied liability for the cervical problem, but accepted responsibility for the carpal tunnel injury. The Employer, however, did not provide any payments for temporary disability.
The Employee underwent four surgeries. The first occurred on April 15, 2002, at which time a two-level cervical fusion was performed at C4-5 and C5-6. Subsequently, she underwent carpal tunnel releases during the summer of 2002. The release on her right arm was performed in June 2002, and the release on her left arm was performed in July or August of 2002. Finally, on December 30, 2002, a diskectomy was performed at the C3 level.
At trial, the trial court found that the Employee had given proper notice of both her carpal tunnel injury and her cervical injury and that the complaint was timely filed. The trial court found that the Employee suffered thirty percent permanent partial disability apportioned to each arm and determined that the Employee was entitled to temporary total disability for two time periods for the Employee's carpal tunnel injury. The trial court dismissed the complaint seeking compensation for the cervical issue, however, finding that the Employee had not established causation. The Employee has appealed the denial of benefits for her cervical injury.
ANALYSIS
Our review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. § 50-6-225(e)(2). Conclusions of law established by the trial court come to us without any presumption of correctness. Watt v. Lumbermens Mut. Cas. Ins. Co., 62 S.W.3d 123, 127 (Tenn. 2001).
In determining the preponderance of the evidence, we must consider the evidence presented. The trial court heard the testimony of a number of witnesses including the Employee, her husband, her supervisor, two co-workers, and the human resource coordinator for the Employer. With respect to this testimony, the trial court had the opportunity to determine the credibility of the witnesses based upon their demeanor and appearance in person before the court. When the trial court has observed the witnesses and heard their testimony, especially where issues of credibility and the weight of testimony are involved, we must extend considerable deference to the trial court's findings. Whirlpool Corp. v. Nakhoneinh, 69 S.W.3d 164, 167 (Tenn. 2002). Three physicians also testified, all of whom presented their testimonies by deposition. When the medical proof is presented by deposition, we must determine the weight to be given to the expert testimony and draw our own conclusions with regard to the issues of credibility with respect to the expert proof. See, e.g., Bohanan v. City of Knoxville, 136 S.W.3d 621, 624 (Tenn. 2004); Krick v. City of Lawrenceburg, 945 S.W.2d 709, 712 (Tenn. 1997); Elmore v. Traveler's Ins. Co., 824 S.W.2d 541, 544 (Tenn. 1992).
Our decision surrounds the question of compensability of the cervical problems suffered by the Employee. In determining this question, we must consider that notice of an injury was properly given, as the trial court found. The only question before us, then, is that of causation of the cervical injury. It is a legal issue which can be determined only after the facts are fully considered. We must consider primarily the expert testimony in this regard and then consider whether the lay testimony is consistent with the findings of the experts.
The factual analysis is relatively simple. We must first determine whether the Employee suffered a cervical injury. Next, we must consider the etiology of this type of injury Finally, we must consider the lay testimony and determine when and where the type of events which lead to the injury occurred. Specifically, we must also consider the extent to which the events which lead to the injury suffered by the Employee occurred at her place of employment and the extent to which work may have caused or exacerbated her condition.
The law provides that the elements of causation are satisfied where the "injury has a rational, causal connection to the work. . . ." Braden v. Sears, Roebuck Co., 833 S.W.2d 496, 498 (Tenn. 1992). All reasonable doubts as to the causation of an injury and whether the injury arose out of the employment should be resolved in favor of the Employee. Phillips v. A H Constr. Co., 134 S.W.3d 145, 150 (Tenn. 2004); Reeser v. Yellow Freight Sys., Inc., 938 S.W.2d 690, 692 (Tenn. 1997). Medical proof may not be speculative, however. Clark v. Nashville Mach. Elevator Co., Inc., 129 S.W.3d 42, 47 (Tenn. 2004); Simpson v. H.D. Lee Co., 793 S.W.2d 929, 931 (Tenn. 1990). Generally, the workers, compensation laws should be "liberally construed to promote and adhere to the [purposes of the Workers' Compensation] Act of securing benefits to those workers who fall within its coverage." Martin v. Lear Corp., 90 S.W.3d 626, 629 (Tenn. 2002). Nonetheless, the burden of proving each element of his cause of action rests upon the worker in every workers' compensation case. Cutler-Hammer v. Crabtree, 54 S.W.3d 748, 755 (Tenn. 2001).
Because of the significance of the medical opinions in this case, we have examined those testimonies in some detail. All three physicians state unequivocally that the Employee suffered a significant cervical injury. Dr. Glenn Barnett, a neurological surgeon, was the only one of those who testified who saw the Employee for purpose of treatment. He testified that when he first saw the Employee on March 19, 2002, she complained of pain in her neck, head, and right arm. She described to Dr. Barnett a "pop" in her neck and pain in her neck and shoulders while at work. At the initial visit, the Employee's right hand swelled and her left arm tingled, but she felt these symptoms were improving. She also described to Dr. Barnett some numbness and pain in her right leg. Dr. Barnett reviewed an MRI which had been ordered previously and diagnosed her with "significant cord compression and myelopathy at the C4-5 and C5-6 level, secondary to centrally herniated discs, "which were the "major factors" in her condition, "at least as major indicators of injury or potential problems." Dr. Barnett recommended surgery for these issues. He also found a "laterally herniated disc at C6 on the left side," "very minimal changes of bulging at the 3-4 level and the 7-T1 level," and "evidence of bilateral carpal tunnel syndrome." Dr. Barnett testified that all of these injuries were consistent with the history of a work-related injury provided by the Employee. He stated further, in cross-examination, when asked whether these injuries would be "attributable to her work," that
with the onset of pain [after the report of the injury] that persisted and with the findings that I saw, I would have to say, again, that it certainly is possible that [the work-related event described by the Employee] was the cause of it. I don't know for certain that it was.
Dr. Barnett acknowledged that his determination as to causation was based "entirely" on the medical history provided by the Employee. Dr. Barnett also wrote in a report to an attorney for the Employee that there was a causal relationship between these injuries and her employment.
Subsequent problems were noted in December 2002 demonstrating herniation at C3, which required a subsequent surgery. Dr. Barnett was much more equivocal in his testimony concerning the etiology of the C3 injury. When asked whether this injury "could have been" caused by the Employee's work injury, he responded: "I guess the answer would be that it obviously could have been. I'm not sure that it was, but it could have been." He did testify that the other neck problems that the Employee experienced caused "pressure on the (sic) her spinal cord at the C-3 level." Further, in cross-examination, Dr. Barnett was asked whether this opinion was "in the general sense a