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finding no meaningful return to work where the Employee attempted to return to work but quit because he was unable to perform his required duties due to pain from the work-related injury
Summary of this case from Stewart v. Kenco Group, Inc.Opinion
No. W2003-00410-SC-WCM-CV.
Mailed January 29, 2004. January 2004 Session.
Filed May 12, 2004.
Direct Appeal from the Chancery Court for Madison County; No. 58815, Joe C. Morris, Chancellor.
Judgment of the Chancery Court Affirmed.
B. Duane Willis, Jackson, Tennessee, for the appellant, International Mill Service, Inc.
Jay E. DeGroot, Jackson, Tennessee, for the appellee, Jessie Morrow.
Joe H. Walker, III SP.J., delivered the opinion of the court, in which Janice M. Holder, J., and James L. Weatherford, S.R.J., joined.
MEMORANDUM OPINION
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of the finding of fact and conclusions of law. We affirm the award of twenty-five percent permanent partial disability and the payment of the medical expenses as ordered by the trial court.
The Employer appeals a finding of twenty-five percent permanent partial disability by the trial court, alleging that the court erred by accepting the impairment rating assessed by the approved workers' compensation treating physician; that the wrong cap was applied; that the Employee received improper temporary total disability; that certain medical bills should not be paid; and the last injurious injury rule applies, barring recovery.
FACTUAL BACKGROUND
At the time of trial, Employee was 44 years of age. He completed the eighth grade, then worked as a farmer and factory worker. He was working for Employer as a mechanic servicing forklifts and heavy equipment at the time of the accident. He was climbing on a machine when a welded piece broke causing him to fall approximately twelve feet. He landed on another machine, injuring his back. He was referred by Employer to Dr. Gilbert Woodall. Dr. William Jennings treated Employee after Dr. Woodall left the clinic.
IMPAIRMENT RATING
Employer alleges that the impairment rating assessed by Dr. Jennings was erroneous and should be reduced or discounted.
Employee was referred by Employer to Dr. Woodall, who left the clinic during the treatment of Employee, and Dr. Jennings assumed treatment of Employee. As a result of the accident, Dr. Woodall diagnosed fractured ribs, lumbar sprain, lumbar spasms, cervical sprain and cervical spasms. Employee was placed on work restrictions. When Dr. Jennings began treating Employee, his back was still hurting. Dr. Jennings placed him on a lifting restriction of no lifting over twenty pounds, no stooping, no use of vibratory tools, no work over shoulder level and no forceful moving or pushing with his back. He continued treating Employee for several months. After Employee reached maximum medical improvement, he was still suffering from musculoskeletal pain. Dr. Jennings assessed anatomic impairment at 8% to the body as a whole under the AMA Guides.
Dr. Woodall testified that during the time he treated Employee his back never stopped hurting and had gotten worse.
Dr. Michael Cobb testified that he saw Employee one time for evaluation and determined that Employee had a history of rib injury and back and neck strain, but found no permanent disability.
The trial court found that Dr. Cobb, who saw Employee on one occasion, was not in a position to assess an impairment rating, since Employee continued to receive medical treatment for many months following the one visit with Dr. Cobb. The trial court also found that Dr. Woodall was not in a position to assess an accurate impairment rating. The court found that a preponderance of the evidence supports the impairment rating assessed by Dr. Jennings. There is ample evidence to support these findings.
Employer maintains that Dr. Jennings used the wrong chart in the 5th edition of the AMA Guides for the assessment. Dr. Jennings testified that the tables in the AMA Guides are not easy to use, and that he has a book that he refers to on how to use the tables. He testified about the table he referred to and the method used to calculate the 8% rating.
AMA Guides provide guidance for the use of physicians to assist them in evaluating the extent of an injured worker's medical impairment. It is not a legal treatise. Interpretation of medical documents is best left to medical experts. Barton v. Anvil International, 2002 Tenn LEXIS 571 (Tenn. Workers' Comp. Panel Dec. 11, 2002). A medical or anatomical impairment rating is not indispensable to an award of permanent disability benefits.Walker v. Saturn Corp., 986 S.W.2d 204, 207 (Tenn. 1998). As stated in Brown v. Campbell Co. Bd. Education, 915 S.W.2d 407 (Tenn. 1995):
The Guides do not provide percentage ratings for some physical and mental impairments. Additionally, the Guides caution against their exclusive use in determining vocational disability. The critical problem is that no formula is known by which knowledge about a medical condition can be combined with knowledge about other factors to calculate the percentage by which the employee's industrial use of the body is impaired. Accordingly, each commissioner or hearing official must come to a conclusion on the basis of assessment of the available medical and nonmedical information. The Guides may help resolve such a situation, but it cannot provide complete and definitive answers.
Dr. Jennings testified as to the specific section of the AMA Guide to support the impairment rating of 8% to the body as a whole that he assessed for Employee. The evidence does not preponderate against the finding by the trial court. This issue is without merit.
MEANINGFUL RETURN TO WORK
Employer contends the award is excessive and particularly that it exceeds two and one-half times the medical impairment rating.
Where an injured worker is entitled to permanent partial disability benefits to the body as a whole and the pre-injury employer returns the employee to employment at a wage equal to or greater than the wage the employee was receiving at the time of the injury, the maximum permanent partial disability award that the employee may receive is two and one-half times the medical impairment rating pursuant to the provisions of the American Medical Association Guides to the Evaluation of Permanent Impairment or the Manual for Orthopedic Surgeons in Evaluating Permanent Physical Impairment. Tenn. Code Ann. § 50-6-241(a)(1). If the offer from the employer is not reasonable in light of the circumstances of the employee's physical disability to perform the offered employment, then the offer of employment is not meaningful and the injured employee may receive disability benefits up to six times the medical impairment rating. Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 630 (Tenn. 1999).
The resolution of what is reasonable must rest on the facts of each case and be determined thereby. The focus is upon the reasonableness of the employer in attempting to return the employee to work and the reasonableness of the employee in failing to return to work. Newton v. Scott Health Care Center, 914 S.W.2d 884 (Tenn. 1995).
If an employee returns to work but is unable to perform his duties due to a work-related injury, then the worker's resignation would be reasonably related to the injury, and there would be no meaningful return to work. Lay v. Scott, 109 S.W.3d 293 (Tenn. 2003).
Employee returned to work under restrictions for several months. He was taken off work restrictions in mid-April and resigned his employment with Employer in mid-May.
Employee testified at trial that the reason he left his employment was his inability to continue doing his job because of back pain. He had to switch jobs, which required heavier lifting and more walking than the job he had at the time of injury. The new job was physically more demanding, which resulted in worse pain, and he was unable to continue working.
After resigning his employment, Employee applied with People Resources for another job, and indicated on the application that he had left the employment with Employer for another job. People Resources obtained a forklift job for him at Owens-Corning. He left that job because his contact with the fiberglass in the workplace caused an allergic reaction. He admitted that he lied to People's Resources but stated he had to feed his family and workers' compensation had cut off his medical treatment.
The chancellor accredited his testimony that he left because of back pain, finding that "the resignation was due to his inability to perform the heavy physical labor involved in his employment and his ongoing problems with his back from his original injury." The trial court found "it was not unreasonable for Jessie Morrow to resign his employment due to his continuing difficulties in performing the labor aspect of his employment."
Dr. Woodall placed Employee back on work restrictions after he voluntarily resigned, indicating that the full duty work was more than Employee could tolerate with his back problems.
The trial court heard the testimony and observed the witnesses, and the reviewing court must give considerable deference to the trial court's findings with regard to the weight and credibility of oral testimony, as it is the trial court which had the opportunity to observe the witness's demeanor and to hear the in-court testimony. Long v. Tri-Con Industries, Ltd., 996 S.W.2d 173, 178 (Tenn. 1999).
Employee maintains that at the time of his resignation from Employer he had not attained maximum medical improvemen, and Employer has never made an offer of re-employment after he reached his maximum medical improvement and is not protected under Tenn. Code Ann. § 50-6-241(a)(1). However, as stated inLay v. Scott County, 109 S.W.3d 293, 297 (Tenn. 2003), the attainment of maximum medical improvement is not necessary in determining whether there has been a meaningful return to work. In determining whether there has been a meaningful return to work, the focus is upon the reasonableness of the Employer in attempting to return the Employee to work and the reasonableness of the Employee in failing to return to work, not the date on which maximum medical improvement was attained.
In this case, the Chancellor found that the Employee attempted to return to work, was unable to perform the duties required because of the work-related injury and quit his employment. There is ample evidence to support the chancellor's findings, and the evidence does not preponderate otherwise. Therefore, there was no error in finding that the two and an half cap does not apply. The Chancellor's finding of vocational disability slightly over three times the anatomical rating is affirmed.
TEMPORARY TOTAL DISABILITY BENEFITStc "TEMPORARY TOTAL DISABILITY BENEFITS"
Employer maintains that the evidence preponderates against the trial court's finding that Employee is entitled to temporary total disability benefits for 18.29 weeks.
The period of contested temporary total disability is from May 24, 2001 through October 17, 2001, excluding June 29 through July 18.
Employee resigned his employment May 10, 2001. He had been working until that time. On May 24, 2001, the doctor placed him back on work restrictions. He remained on work restrictions until the doctor last saw him on October 17, 2001. During this time, Employee applied for work with People Resources, which found him employment at Owens-Corning from June 29 through July 18.
The Chancellor found that "the fact that Jessie Morrow was able to temporarily return to work at Owens-Corning only temporarily suspended his right to receive temporary total disability benefits since he was still under restrictions from this work injury."
An injured employee who meets the statutory criteria is entitled to certain monetary benefits, including the payment of all medical expenses arising from the accident together with a recovery for any temporary or permanent disability resulting from the accident. Tenn. Code Ann. § 50-6-207. Temporary total disability refers to the injured employee's condition while disabled to work by the injury and until the employee recovers as far as the nature of [the] injury permits. Tennessee Code Annotated section 50-6-207(3)(A)(i) specifically provides that the injured employee shall receive compensation "for the period of time during which [the employee] suffers temporary total disability on account of the injury," and thus the purpose served by such benefits is to allow for "the healing period during which the employee is totally prevented from working." Gluck Bros., Inc. v. Coffey, 431 S.W.2d 756, 759 (1968).
The fact that benefits were terminated by a nominal return to work does not necessarily mean that temporary total disability benefits can never be revived.
Temporary total disability benefits that have terminated because of a return to work may be revived when the employee (1) is no longer capable of performing work because of the injury, and (2) the employee, at the time of resignation, has yet to reach maximum medical improvement from the original accidental injury. Cleek v. Wal-Mart Stores, Inc., 19 S.W.3d 770, 778 (Tenn. 2000).
The trial court found that the Employee continued working after the injury for some time but resigned due to his inability to perform the heavy physical labor involved in his employment and his ongoing problems with his back from his original injury; that he was under various restrictions by the treating physician up to October 17, 2001; and that the fact that he was able to temporarily return to work at Owens-Corning only temporarily suspended his right to receive temporary total disability benefits since he was still under restrictions from his work injury.
The evidence does not preponderate against the finding of the trial court. This issue is without merit.
MEDICAL EXPENSES
Employer maintains that medical bills alleged by the plaintiff at the time of trial were not proven to be necessary and reasonable or related to the treatment of the authorized physicians, and therefore are not recoverable. The Chancellor found that the parties "stipulate that the sum of $4,532.10 in medical bills were incurred which have been, or will be, paid by the Defendant."
At the start of trial, Employee's attorney stated: "We also have some medical expenses, some of which have been paid and some of which have not been paid. We've agreed to stipulate to those, as well. And if I could, I'd like to pass up an itemization of medical expenses, and we'd enter that as our first exhibit."
A list of medical expenses was admitted as exhibit one, which showed itemized medical expenses of $4,532.10, together with the supporting bills. No objection was made to the admission of that exhibit.
Employer's attorney responded:
As far as the stipulations, as of yesterday, I had my secretary do some calling to check on these medical-expense itemizations. Just to go through what she did find out, there was a statement on here from June 1st of 2001 for one thousand one hundred dollars, which was paid according to Methodist. Doctor Cobb's bill has been paid, according to him. And the outstanding bills for Jackson-Madison County General hospital are one thousand two hundred thirty-nine dollars and twenty-five cents, which would make that bill total one thousand nine hundred six eighty-five. Obviously, I think there will be some issues that come up during the trial as to whether some of those were authorized and whether some of them weren't, which will be up to Your Honor's discretion as that goes along. The rest of the stipulations were agreed to.
During the trial very little proof was presented with regard to the medical expenses, other than the exhibit.
From a review of the record, we can appreciate why the Chancellor found that the parties stipulated that the sum of $4,532.10 in medical bills were incurred which have been, or will be, paid by the Defendant. The statements made to the Chancellor seemed to indicate that the medical bills were subject to stipulation. There was little other proof or argument contesting any of the medical expenses. A motion for correction of the findings of fact was presented to the Chancellor two months after trial, and a review of the transcript of that hearing shows that the medical expenses were not mentioned.
We find that the trial court properly ruled that the medical expenses itemized in exhibit one have been or should be paid by the Employer.
THE LAST INJURIOUS INJURY RULE
The Employer contends the trial court should have dismissed the complaint because of the "last injurious injury rule."
Where an employee is permanently disabled as a result of a combination of two or more accidents occurring at different times and while the employee was working for different employers, the employer for whom the employee was working at the time of the most recent accident is generally liable for permanent disability benefits. See Baxter v. Smith, 364 S.W.2d 936 (1962), and its progeny. Where, however, work aggravates a pre-existing condition merely by increasing pain, there is no injury by accident.Kellerman v. Food Lion, Inc., 929 S.W.2d 333, 335 (Tenn. 1996).
The Chancellor found that Employee's back complaints had never resolved since the initial injury. The subsequent incidents at the same employer were found to be aggravations of the initial injury. This conclusion is supported by the medical proof. The doctors who treated Employee testified that he would be more prone to further aggravation after the initial back injury.
Employer asserts that Employee was "exposed to a condition in this subsequent employment that could have aggravated or caused his condition, or could have caused his condition to be aggravated . . ." and thus the work at People Resources must be considered to be the last employment which he was exposed to a condition which could have created the rating he received.
We do not agree with the defendants' contention that the last injurious injury rule applies. For that rule to apply, there must be another injury or aggravation of the condition. The evidence indicates that there was no new injury during his employment with People Resources. Any aggravation that occurred was merely an increase in pain. Under workers' compensation law, no injury has occurred if a preexisting condition has been aggravated merely by an increase in pain. Cunningham v. Goodyear Tire Rubber Co., 811 S.W.2d 888, 890 (Tenn. 1991).
The judgment of the trial court is therefore affirmed. Costs are taxed to the appellant.
ORDER
This case is before the Court upon motion for review pursuant to Tenn. Code Ann. § 50-6-225(e)(5)(B), the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference;
Whereupon, it appears to the Court that the motion for review is not well-taken and should be denied and
It is, therefore, ordered that the Panel's findings of fact and conclusions of law are adopted and affirmed, and the decision of the Panel is made the judgment of the Court.
Costs on appeal are taxed to the appellant.
IT IS SO ORDERED this 12th day of May,2004.
Holder, J. — Not participating.