Case Study/ AMA Guides 6th edition
IN THE SUPREME COURT OF TENNESSEE
SPECIAL WORKERS’ COMPENSATION APPEALS PANEL
AT KNOXVILLE
January 28, 2013 Session
JAMES REED v. CENTRAL TRANSPORT NORTH AMERICA, INC.
Appeal from the Circuit Court for Knox County
No. 1-339-10 Dale Workman, Judge
No. E2012-00535-WC-R3-WC-MAILED-MARCH 28, 2013/FILED-APRIL 29, 2013
In this workers’ compensation action, the employee suffered a compensable back injury.
Surgery did not relieve his symptoms of severe pain. The trial court awarded 84% permanent
partial disability benefits. The employer filed a motion to set aside the judgment based on
the employee’s alleged failure to supplement his discovery responses. The trial court denied
the motion. The employer has appealed, contending that the award is excessive and that the
trial court erred by denying its post-trial motion. The appeal has been referred to the Special
Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and
conclusions of law in accordance with Tennessee Supreme Court Rule 51. We affirm the
judgment of the trial court.
Tenn. Code Ann. § 50-6-225(e) (2008) Appeal as of Right; Judgment of the Circuit
Court Affirmed
PAUL G. SUMMERS, SR. J., delivered the opinion of the Court, in which SHARON G. LEE,
J. and JOHN K. BLACKWOOD, SR. J., joined.
Robert M. Asbury, Knoxville, Tennessee, for the appellant, Central Transport North
America, Inc.
T. Scott Jones and Chris W. Beavers, Knoxville, Tennessee, for the appellee, James Reed.
MEMORANDUM OPINION
Factual and Procedural Background
James Reed (“Employee”) began working for Central Transport North America, Inc.
(“Employer”) as an over-the-road truck driver in 2007. He had previously worked as a driver
for other employers and also as a motorcycle mechanic. He injured his lower back on
October 22, 2008, as he was pulling a large crate to place it on a forklift. He immediately
reported the injury to his supervisors. He initially received medical care from a walk-in
clinic, but was later referred to Dr. Patrick Bolt, an orthopaedic surgeon, for treatment. Dr.
Bolt prescribed physical therapy and injections; but these efforts did not improve Employee’s
condition. In May 2009, Dr. Bolt performed surgery on Employee’s back, removing a
ruptured disc at the L4-5 interspace. Unfortunately, that procedure did not provide any relief
to Employee. Post-surgical therapy and injections likewise did not alleviate Employee’s
symptoms.
When the trial occurred in October 2011, Employee had not worked or applied for
work since his injury. He was thirty-nine years old and a high school graduate. He testified
that he was unable to bend, squat, or walk more than short distances; and he had to alternate
sitting, standing, and walking due to back pain. He did not believe he was capable of driving
a truck or performing any of his previous jobs. He had recently undergone a trial
implantation of a spinal cord stimulator. That device had provided about 40% relief of his
symptoms.
During cross-examination, Employee stated that he had a work-related shoulder injury
while working for a previous employer. He had been off work approximately one year as a
result of that injury, but had been able to return to full duty. He agreed that he had used
crutches at the time of a functional capacity evaluation ordered by Dr. Bolt but no longer
used the crutches. The record is not clear as to who prescribed the crutches for him. Dr. Bolt
denied that he had done so. Employee also admitted that he had a work-related back injury
in 2003. He received treatment at a walk-in clinic and returned to work without restrictions
within about two weeks. He admitted that he did not mention this injury during his preemployment
physical for Employer, stating that he considered it to be minor.
Dr. Bolt testified by deposition. He ordered an MRI, which was performed on
December 1, 2008. That test showed a herniated disc at the L4-5 level and also a
hematoma. Dr. Bolt thought the presence of the hematoma “might have indicated that it was
a recent injury.” His observations during the surgery were consistent with the MRI
results. He opined that the procedure had a “good radiological result,” in that the ruptured
disc material was removed, but a “poor clinical result,” in the absence of any improvement
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of Employee’s symptoms. Dr. Bolt opined that Employee retained a 14% permanent
anatomical impairment as a result of the injury and surgery.
Dr. Bolt also referred Employee for a functional capacity evaluation (“FCE”). The
evaluator found that Employee was not able to perform a full range of sedentary work.
However, because the evaluator found that Employee self-limited a number of activities, Dr.
Bolt opined that the results represented his lowest level of potential functioning rather than
his highest. He further stated that it was not unusual for patients with severe pain to selflimit
their activities. He stated that the FCE results were consistent with his own
observations of Employee and that he did not believe Employee was malingering.
Dr. Jeffrey Uzzle, also an orthopaedic surgeon, evaluated Employee on September 30,
2010, at Employee’s attorney’s request. Dr. Uzzle testified by deposition. He noted that
Employee had an “anoxic brain event” in May 2010, apparently as a result of an overdose of
pain medication. He stated that Employee did not include his 2003 back injury in his medical
history; but after reviewing medical records concerning the event, he opined the injury had
resolved within a short time and was unrelated to the October 2008 injury. Dr. Uzzle
testified that Employee demonstrated four of a possible five Waddell’s signs, which
suggested that “non-organic” factors may have played a role in Employee’s condition. He
opined that Employee had chronic pain disorder with depression. He did not perform an
analysis of Employee’s impairment, but agreed with Dr. Bolt’s opinion on the subject.
Two vocational evaluators testified at trial. Dr. Craig Colvin interviewed Employee
at his attorney’s request. He also reviewed Dr. Bolt’s deposition, Dr. Uzzle’s report, and the
FCE. Based on that information, he opined that Employee had a 100% vocational disability.
Dr. Rodney Caldwell evaluated Employee at Employer’s request. He administered the Wide
Range Achievement Test. That test showed that Employee’s word reading was at the twelfth
grade level, and his sentence comprehension and arithmetic were at the seventh grade level.
Dr. Caldwell opined that, based on the FCE results, Employee was totally
disabled. However, he was unable to express an opinion regarding disability based on the
depositions of Dr. Bolt or Dr. Uzzle.
The trial court issued its findings of fact and conclusions of law from the bench. The
trial court found that Employee sustained a compensable injury as alleged. It further found
that Employee’s 2003 back injury was a mild lumbar strain of no significance; employee’s
failure to disclose it in his employment application or to Dr. Bolt did not affect the
compensability of the October 2008 injury. After reviewing Employee’s non-compliance
with his physical therapy, his self-limiting effort during the FCE, his education, and work
experience, the trial court determined that Employee sustained an 84% permanent partial
disability to the body as a whole. Judgment was entered in accordance with the court’s
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findings. Employer filed a motion to set aside the judgment, alleging that Employee had
failed to supplement his interrogatory responses and that it had been prejudiced by that
failure. The trial court denied the motion. Employer has appealed, contending that the award
of permanent disability benefits was excessive and that the trial court erred by denying its
motion to set aside.
Standard of Review
The standard of review of issues of fact is de novo upon the record of the trial court
“accompanied by a presumption of correctness of the findings, unless the preponderance of
evidence is otherwise.” Tenn. Code Ann. § 50-6-225(e)(2)(2008 & Supp. 2012). When
credibility and weight to be given testimony are involved, considerable deference is given
the trial court when the trial judge had the opportunity to observe the witness’ demeanor and
to hear in-court testimony. Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315, 315
(Tenn. 1987). A reviewing court, however, may draw its own conclusions about the weight
and credibility to be given to expert testimony when all of the medical proof is by
deposition. Krick v. City of Lawrenceburg, 945 S.W.2d 709, 712 (Tenn. 1997); Landers v.
Fireman’s Fund Ins. Co., 775 S.W.2d 355, 356 (Tenn. 1989). A trial court’s conclusions of
law are reviewed de novo upon the record with no presumption of correctness. Ridings v.
Ralph M. Parsons Co., 914 S.W.2d 79, 80 (Tenn. 1996).
Analysis
Excessive Award
Employer contends that the award of 84% permanent partial disability is excessive. It
correctly points out that the award was six times Dr. Bolt’s 14% anatomical impairment
rating, the maximum permitted by Tennessee Code Annotated § 50-6-241(d)(2)(A)(2008 &
Supp. 2012). It argues that the evidence preponderates against a maximum award. That
argument is based on several specific issues, including: Employee’s failure to disclose the
2003 injury to Employer or his treating physician; his use of crutches not prescribed by his
physician; suggestions in the medical records that he was not fully compliant with his
physical therapy program; discrepancies between Employee’s anatomical condition and
symptoms noted by Dr. Uzzle; and Employee’s questionable effort during the FCE.
The trial court found that the 2003 injury was inconsequential, and Employee’s failure
to disclose it was immaterial to the issues of causation and disability. That finding was
consistent with the testimony of Dr. Bolt and Dr. Uzzle. There is no evidence to the contrary
in the record. Two vocational evaluators, one of whom was called on behalf of Employer,
testified that if the FCE was accepted at face value, Employee was totally disabled. No
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evidence was presented that Employee was capable of working at any particular
occupation. Both Dr. Bolt and Dr. Uzzle opined that, in spite of the self-limiting behavior
during the FCE and his unprescribed use of crutches, Employee was not malingering. Again,
the record contains no evidence contradicting those opinions.
“The extent of an injured worker's permanent disability is a question of fact.” Lang
v. Nissan N. Am., Inc., 170 S.W.3d 564, 569 (Tenn. 2005)(citing Jaske v. Murray Ohio Mfg.
Co., Inc., 750 S.W.2d 150, 151 (Tenn. 1988)). In this case, the trial court was presented with
a considerable amount of evidence that Employee suffered a serious injury to his lower
back. Surgery did not alleviate his symptoms, and his future employment opportunities were
severely limited. We conclude that the evidence does not preponderate against the trial
court’s assessment of Employee’s disability.
Motion to Set Aside
Employer also contends that the trial court erred by failing to grant its motion to set
aside the judgment. The basis for that motion was Employee’s alleged failure to supplement
his interrogatory responses when he moved from Seymour, Tennessee to Sevierville, and
when he and his wife divorced. Employer alleges that it was“unable to conduct surveillance
on the Plaintiff as to his degree of day-to-day mobility and also unable to question/subpoena
the Plaintiff’s estranged wife on the issue of the Plaintiff’s activities of daily living,” because
of this alleged failure to supplement. This Panel notes that Employer’s counsel stated at trial
that surveillance of Employee had been conducted. However, it chose not to introduce
evidence concerning that surveillance.
Counsel’s statement does not indicate when the surveillance of Employee was
conducted. Employer’s motion to set aside does not state what, if any, efforts were made to
conduct additional surveillance. The motion does not state what, if any, efforts were made
to depose Employee’s estranged wife. There is no transcript of the hearing on the
motion. Trial court decisions concerning discovery issues are reviewed on an abuse of
discretion standard. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010). We find
no basis in the record of this case to support a conclusion that the trial court abused its
discretion by denying Employer’s post-trial motion.
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Conclusion
The judgment of the trial court is affirmed. Costs are taxed to Central Transport North
America, Inc. and its surety, for which execution may issue if necessary.
_________________________________
PAUL G. SUMMERS, Senior Judge
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IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE, TENNESSEE
January 28, 2013 Session
James Reed v. Central Transport North America, Inc.
Knox County Circuit Court
No. 1-339-10
No. E2012-00535-WC-R3-WC
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 Opinion of the Panel should be
accepted and approved; and
It is, therefore, ordered that the Panel's findings of facts and conclusions of law
are adopted and and affirmed and the decision of the Panel is made the Judgment of the Court.
The costs on appeal are taxed to Central Transport North America, Inc., and its
surety, for which execution may issue if necessary.
PER CURIAM
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