Opinion
No. M1999-01063-WC-R3-CV.
Mailed June 7, 2000. Filed July 10, 2000.
Direct Appeal from The Tennessee Claims Commission For The State of Tennessee, No. 970027005 Honorable W.R. Baker, Commissioner, Tennessee Claims Commission.
Affirmed.
James H. Tucker, Jr. and Stacey D. Billingsley, Nashville, Tennessee, The State of Tennessee, for Appellant.
Gary R. Gober, Nashville, Tennessee, Donna Grantham, for Appellee.
JUDGMENT
This case is before the Court upon 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 Memorandum Opinion of the Panel should be accepted and approved; 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 will be paid by the appellant, for which execution may issue if necessary.
IT IS SO ORDERED.
OPINION
The employer, State of Tennessee, appeals and insists that: (1) the evidence preponderates against a finding that the injury arose out of and in the course of the employment relationship and (2) the employee did not sustain an injury by accident within the meaning of the Tennessee Workers' Compensation Act. No other issues are raised. As discussed below, the panel concludes that the judgment should be affirmed.
The employee initiated this action to recover workers' compensation benefits for an injury which she says occurred when she moved a heavy box in preparation for an office relocation while employed as a legal secretary at the Tennessee Attorney General's Office. After a hearing before the Claims Commission, the Commissioner held that the claimant should be awarded permanent partial disability benefits based on 25% to the body as a whole and ordered her employer to reimburse plaintiff for a five hundred dollar deposition fee charged by the treating physician. Our review is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. § 50-6-225(e)(2).
Ms. Grantham, at the time of her injury on May 14, 1997 was 44 years old and had worked in the Attorney General's Office since March, 1994. Ms. Grantham had experienced back problems beginning in 1990. She testified, however, that these problems seldom interfered with her work and by the use of medication and other conservative treatment she had performed her duties as a legal secretary.
On May 14, 1997 the Attorney General was moving the office. Boxes and cabinets were ready to be moved and were stacked about the office. Ms. Grantham was not expected to transport boxes to the new office but found that she had to move some about in order to do her office work. She attempted to move one of the boxes by pushing it with her foot and felt what she described as "tremendous pain." "I knew something was terribly wrong. I never felt pain like that. It was the worst pain I could ever explain." She immediately reported the injury to the administrative secretary and then to her immediate supervisor, the Deputy Attorney General. She filled out an accident report and then tried to work the next two days but experienced debilitating pain. In comparing the pain from the May 14th incident she stated that it was far greater than any of the pain she had experienced earlier. "It was excruciating, it was the worst pain I could imagine." She tried to work after the incident but was unable to do so and left the employment of the Attorney General.
Ms. Grantham went to see a neurosurgeon, Dr. Arthur Cushman and she underwent surgery in November, 1997. After a period of recovery she was able to go back to work as a part time secretary at a law office and then worked for a temporary service. She presently works as a temporary legal secretary.
Dr. Cushman diagnosed Ms. Grantham as having low back pain with degenerative disc disease. The myelogram showed a degenerative disc disease at L4-5 and L5-S1 which was consistent with her symptoms. He performed a laminectomy on the discs in November, 1997. Dr. Cushman opined that the incident of May 14, 1997 could well have caused her chromic back problems to become symptomatic to the point where she could no longer work and needed surgery. He stated that he would rate her medical impairment at 10% to the body as a whole. Subsequent to the surgery, he believed she could return to work but she must avoid both heavy lifting and repetitive lifting and bending.
The State's two assignments of error are that the injury did not arise out of her employment and that she did not sustain an injury by accident within the meaning of the Act. These essentially are the same assignment of error and will be discussed together.
First of all, Dr. Cushman's testimony must be evaluated in light of the rule that any reasonable doubt as to causation should be resolved in favor of the employee. See Legions v. Liberty Mutual Insurance, 703 S.W.2d 620, 622 (Tenn. 1986). Furthermore, in a workers' compensation case the fact finder may properly predicate the award on medical testimony to the effect that a given incident could be the cause of the claimants injury, when from other evidence, it may be reasonably inferred that the incident was in fact the cause of the injury. See McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995).
The appellant puts great stock in cases such as Townsend v. State, 826 S.W.2d 434 (Tenn. 1992) and Smith v. Smith's Transfer Corp., 735 S.W.2d 221 (Tenn. 1987) both of which hold that there is no injury by accident where work aggravates a preexisting condition merely by increasing the pain. The court agrees with this general principle but finds it to be inapplicable to this case. Townsend and Smith must be read in light of the following clarification in Smith as well as cases discussed below:
In the instant case, Ms. Smith's work for the defendant aggravated her pre-existing condition by making the pain worse but it did not otherwise injure or advance the severity of her thoracic outlet syndrome or result in any other disabling condition. Thus, we find plaintiff did not sustain an injury by accident within the meaning of the Workers' Compensation Act while employed by the defendant.
Smith's Transfer, supra at 225-26. Here, the proof supports the conclusion that the incident of May 14, 1997 injured or advanced the severity of Ms. Grantham's back problems so as to result in a disabling condition. Neither Townsend nor Smith involve a specific debilitating incident. Both involved repeated trauma that the employee contended increase their pain over a long period of time. The absence of a "mishap or untoward event" is often emphasized in the increase pain cases. See e.g., Bowling v. Raytheon, 223 Tenn. 528, 448 S.W.2d 405, 408 (Tenn. 1969).
In Brown Shoe Company v. Reed, 209 Tenn. 106, 350 S.W.2d 65 (1961), the Supreme Court gave a definition of the word "accident" as used in our workers' compensation statute in the following language.
An accident is generally an unlooked for mishap, an untoward event, which is not expected or designed. Generally in most such cases this court has repeatedly said that a compensable injury should be the result of something happening by accidental means so the act involving the accident was intentional. Accidental means means ordinarily means an effect which was not the natural or probable consequence of the means which produced it, an effect which does not ordinarily follow and cannot be reasonably anticipated from the use of those means, and effect which the actor did not intend to produce and which he cannot be charged with the design of producing. It is produced by means which were neither designed nor calculated to cause it. It cannot be reasonably anticipated, it is unexpected, it is produced by unusual combinations of fortuitous circumstances and such an injury is an injury by accidental means.
This case is similar in many respects to the case of Sweat v. Superior Industries, Inc., 966 S.W.2d 31 (Tenn. 1998). In that case, Mr. Sweat had psoraitic arthritis, an ongoing debilitating condition, which preexisted his employment with the defendant.Id. at 31. He alleged that he was "asymptomatic to his employment with the defendant and that the nature of his job triggered his symptoms and worsened the underlying disease." Id. at 32. The defendant, on the other hand, argued that Mr. Sweat's symptoms were only exacerbated by his work but that his disease was not worsened. Id.
The Court held that the employee had a preexisting condition and that it was his employment that "triggered" his symptoms. "Specifically, the prolonged standing on a concrete floor and at times the strenuous nature of his work cause a progression of actual worsening of his underlying disease of psoraitic arthritis." Id. at 34. Mr. Sweat was found to have a compensable injury. This case is not dissimilar to Sweat.
Ms. Grantham went to work for the Attorney General in 1994. Her back problem was symptomatic but it was not serious and did not interfere with her employment. The back problem did not become debilitating until the incident of May 14, 1997. The opinion of Dr. Cushman was that the May 14, 1997 incident could well have made her chromic back problem "symptomatic" to a point where she needed surgery and could no longer work.
The Commissioner's decision is further supported by the holding of this court in Hill v. Eagle Bend Manufacturing, Inc., 942 S.W.2d 483 (Tenn. 1997). Here again, the employer was arguing that the employee only suffered increased pain. The trial judge had decided the case in the employee's favor but the special workers' compensation panel reversed. On full review by the court, the court held that the employee was entitled to compensation. The employee had a long history of back problems including prior back surgeries. He suffered a debilitating injury on a date specific. His doctor testified that this was a further permanent injury and exacerbation of his preexisting back condition. The Supreme Court held as follows:
The Second Injury Fund argues that the October 20 injury is not compensable because it produced only an increase in Hill's pain. We disagree. An employer is responsible for workers compensation benefits, even though the claimant may have been suffering from a serious pre-existing condition or disability, if employment causes an actual progression or aggravation of the prior disabling condition or disease which produces increased pain that is disabling. Fink v. Caudle, 856 S.W.2d 952, 958 (Tenn. 1993); White, 824 S.W.2d at 161; Talley, 775 S.W.2d at 592 ("There is no doubt that pain is considered a disabling injury, compensable when occurring as the result of a work-related injury.") An employer takes an employee as he or she is and assumes the responsibility of having a pre-existing condition aggravated by a work-related injury which might not affect a normal person.
Id. at 488.
From a consideration of the cases cited above, and an examination of the record, particularly including the testimony of the claimant, we cannot say that the evidence preponderates against the finding that this was an accidental injury arising out of and in the course of the employment. The decision of the Commissioner is affirmed. Costs are taxed to the appellant.
BIRCH, J., and LOSER, Sp. J., joined.