No. M2001-02035-WC-R3-CVSupreme Court of Tennessee, Special Workers’ Compensation Appeals Panel.
Filed July 18, 2003.
Direct Appeal from the Chancery Court for Rutherford County; No. 99WC-1577, Hon. Robert E. Corlew, III, Judge.
Affirmed.
GRAY, SP. J., delivered the opinion of the court, in which BIRCH, J., and LOSER, SP. J. joined.
James H. Tucker, Jr., Manier, Herod, Nashville, TN, for the appellant, Maintenance and Industrial Services, Inc., et al
Robert T. Griffin, Murfreesboro, TN, for the appellee, Randy Andrews
MEMORANDUM OPINION
Tom E. Gray, Special Judge
This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel in accordance with Tenn. Code Ann. § 50-6-225(e)(3) for hearing and reporting to the Supreme Court of Tennessee for findings of fact and conclusions of law. In this case, the employee contends the trial court erred in (1) determining that the employee’s pre-existing right knee arthritic condition was advanced as a result of a work related accident and was therefore compensable under the Worker’s Compensation Act; (2) awarding fiftee n (15%) percent vocational disability for employee’s right leg; (3) awarding twenty-eight (28%) percent vocational disability for employee’s left leg. For reasons stated, the panel has concluded that the judgment of the trial court should be affirmed on all three issues.
Randy Andrews, plaintiff/appellee, suffered an accident arising out of and in the course and scope of his employment at Maintenance and Industrial Services, Inc., (MIS) on the 19th day of November, 1998. Plaintiff worked for MIS performing maintenance on large rubber processing and tire manufacturing machines. He injured his left knee while attempting to repair a rubber jam in a loader machine. When the rubber broke loose, Andrews fell backward striking his left knee on a guardrail, falling over the guardrail onto the floor. A supervisor saw the accident and directed Andrews to complete a First Report of Injury.
Randy Andrews was born on the 11th day of December, 1947. He obtained a General Equivalency Diploma while in the military and received training in the electrical field. Prior to his employment with MIS, Andrews worked as a lineman. His job responsibilities as a lineman included climbing poles, bending, stooping and kneeling. Andrews’ work responsibilities at MIS required him to engage in similar activities.
Dr. William Gavigan treated Andrews for the November 19, 1998 injury. An MRI confirmed that Andrews had chondromalacia of the patella and fraying of the inner margin of the lateral meniscus. Dr. Gavigan noted that the work-related accident was the “most likely cause” of the left knee injury. He continued to treat Andrews over the following months. During that time, Andrews engaged in physical therapy and was allowed to work subject to specific restrictions. Left knee pain continued to trouble him and in April, 1999 Dr. Gavigan performed arthroscopic surgery. Dr. Gavigan concluded that Andrews obtained maximum medical improvement for his left leg on the 17th day of June, 1999 and ascribed a four (4%) percent permanent anatomical impairment to the lower left leg of the plaintiff based upon the Fourth Edition of the AMA Guidelines.
An independent medical evaluation performed by Dr. David W. Gaw on the 7th day of December, 2000 noted soreness at the patella and patellar tendon junction along with cracking and popping in the left knee. Dr. Gaw believed that these symptoms were consistent with Dr. Gavigan’s diagnosis and also believed that the work-related accident in November, 1998 caused Andrews’ left knee injury. He assessed a seven (7%) percent permanent partial anatomical impairment to Andrews’ lower left extremity based on the Fifth Edition of the AMA Guidelines and testified that the impairment rating would be the same under the Fourth Edition of the AMAGuidelines. According to Dr. Gaw, pain would limit Andrews’ ability to squat, climb or kneel and recommended that Andrews only do those activities occasionally.
Prior to the left knee injury in November, 1998 Andrews had a previous work-related injury to the right knee. This right knee injury occurred in December, 1997. A lawsuit was filed in Rutherford County Circuit Court for this 1997 injury on the 9th day of December, 1998. A settlement between Andrews and MIS was filed on the 7th day of July, 2000. The settlement was based upon a forty (40%) percent vocational disability to the right leg and a lump sum payment was made.
Dr. Daniel L. Phillips initially treated the plaintiff in June, 1998 for the right knee problems associated with the December, 1997 injury. Dr. Phillips diagnosed osteoarthritis of the right knee; he injected cortisone and provided a knee brace for support. At that time, Dr. Phillips testified that there was a fifty (50%) percent impairment to the right leg due the pre-existing arthritis in the right knee. Dr. Phillips had a long conversation with Randy Andrews regarding the implications of having osteoarthritis. To Mr. Andrews, Dr. Phillips explained the various treatment options, including a total knee replacement. It was Dr. Phillips’ opinion that Andrews would most likely require a knee replacement in the future. Dr. Phillips also indicated that the purpose of the injection was to delay the need for consideration of the knee replacement. Plaintiff was released from the care of Dr. Phillips in July, 1998 after the pain in the right knee subsided.
Following the left knee surgery by Dr. Gavigan in April, 1999 Andrews changed the way he walked. He shifted weight from his left leg on to his right leg to reduce the pain in the left knee. This change created pain and swelling in both knees. On the 26th day of April, 1999 Dr. Gavigan aspirated the right knee and injected cortisone. Dr. Gavigan noted that the fluid aspirated from the right knee showed crystals compatible with pseudogot and concluded that the plaintiff’s right knee was aggravated during the post-operative method following the left knee surgery.
Dr. Phillips testified that the greater reliance placed on the right leg while walking, “may have had some small aggravating affect to the right knee.” He also stated that the existence of pseudogot in the right knee aspiration marked an advance of arthritis in the right knee. He explained that pseudogot accelerates arthritic change in the knee. Dr. Phillips expressed an opinion that Andrews’ history of swelling and right knee problems were consistent with progressive arthritis of the right knee. Follow-up x-rays in January, 2000 revealed further progression of the right knee osteoarthritis.
The progression of arthritis in the right knee continued to bother Andrews. On the 19th day of October, 2000 Dr. Phillips performed a total right knee replacement on Andrews. Following the surgery Dr. Phillips concluded that Andrews had a thirty-seven (37%) percent permanent partial impairment to the lower right extremity based on the Fifth Edition of theAMA Guidelines. He also concluded that Andrews reached maximum medical improvement for the right knee on the 10th day of January, 2001.
Andrews did not return to work with MIS until the 1st day of February, 2001. After returning, he was ultimately transferred to perform preventative maintenance due to his inability to crawl, squat, and get underneath objects at work. In this capacity, Andrews worked with a group so that others could perform tasks that require extensive use of the knee. Andrews can no longer climb, and he complains of swelling and instability in the left knee.
At the time of the 19th day of November, 1998 accident, Andrews operated his own private electrical contracting business. He testified that he was able to perform all the job requirements associated with being an electrical contractor prior to the accident in November, 1998. At the time of the trial, he said he was no longer able to handle jobs as a private electrical contractor that required him to crawl. His testimony was that he must subcontract this work to someone else.
MIS returned Andrews to work at a wage equal to or greater than he was earning at the time of his accident in November, 1998.
The trial judge concluded that Andrews sustained a vocational disability of twenty-eight (28%) percent to the left leg and fifteen (15%) percent to the right leg. He also awarded ten weeks of temporary total disability benefits.
For injuries occurring on or after the 1st day of July, 1985 Appellate Review is de novo upon the record of the trial court. There is a presumption of correctness of the findings of fact unless the preponderance of the evidence is otherwise. Tennessee Code Annotated § 50-6-225(e)(3). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies. Wingert v. Government of SumnerCounty 908 S.W.2d 921, 922 (Tenn. Sp. Worker’s Comp. 1995) The standard governing appellate review of findings of fact by a trial judge requires Special Workers’ Compensation Appeals Panel to examine in depth the trial court’s factual findings and conclusions. GAF Building Materials v.George 47 S.W.3d 430, 432 (Tenn. 2001). Conclusions of law are subject to the de novo review on appeal without any presumption of corrections.Presley v. Bennett 860 S.W.2d 857, 859 (Tenn. 1993). When medical testimony is presented by deposition, this Court is able to make its own independent assessment of the medical proof to determine where the preponderance of the evidence lies. Cooper v. INA, 884 S.W.2d 446, 451 (Tenn. 1994); Landers v. Fireman’s Fund Ins. Co., 775 S.W.2d 355-356 (Tenn. 1989)
The employer/appellant first argues that Andrews did not show proof of an additional injury to the right knee that exacerbated the pre-existing arthritis. It contends that Andrews’ injuries to the right knee are not compensable because they resulted from the natural progression of osteoarthritis. Specifically, MIS relies upon Dr. Phillips’ testimony where he states that the right knee problem were consistent with the progression of arthritis in that knee.
This Court has held that “an employer takes the employee with all pre-existing conditions and cannot escape liability when the employee, upon suffering a work-related injury incurs disability far greater than if he had not had the previous pre-existing conditions” Kellerman v. FoodLion, Inc., 929 S.W.2d 333, 335 (Tenn. 1996). An injury is compensable when the employee was suffering from a serious pre-existing condition or disability, if a work-related accident can fairly be said to be a controlling cause of such injury. Fink v. Caudle, 856 S.W.2d 952, 958 (Tenn. 1993).
Finally, the Worker’s Compensation Act is construed so that any reasonable doubt regarding causation is to be resolved in favor of the employee. Hall v. Auburntown Indus., Inc., 684 S.W.2d 614, 617 (Tenn. 1985).
Dr. Gavigan testified that the pre-existing condition in the right knee was aggravated during the post-operative period following the left knee surgery. Further, Dr. Phillips’ testimony revealed that Andrews increased reliance on the right leg following the left knee surgery “may have had some small aggravating affect to the right knee.” Dr. Phillips also testified that the pseudogot discovered in the right knee aspiration performed by Dr. Gavigan illustrated the advance of arthritis. This aspiration occurred during post-operative period and following the left knee surgery. Given this medical testimony, we find that the evidence does not preponderate against the trial court’s finding that the pre-existing condition to the right knee was aggravated by the work-related injury to the left knee and was compensable under the Worker’s Compensation Act.
The employer/appellant argues that a prior lump sum settlement agreement that contemplated the possibility of future right knee replacement prevented Andrews from receiving additional benefits for the right knee injury. Relying on Underwood v. Zurich, Ins., Co., 854 S.W.2d 94
(Tenn. 1993), MIS argues that lump sum awards are not subject to modification unless the award is paid periodically for more than six months. Id at 98. We note however that the trial judge did not modify the prior award, but rather concluded from the evidence that there was an aggravation of a pre-existing condition to the right knee that was compensable under the Worker’s Compensation Act. We hold the argument of MIS to be without merit.
Alternatively, MIS contends that the trial judge’s award of fifteen (15%) percent vocational disability to the right leg was excessive in light of the fact that Andrews’ right knee condition has substantially improved as a result of the knee replacement surgery performed by Dr. Phillips. Specifically, MIS points to testimony offered by Dr. Phillips showing that after December, 1997 injury there was a fifty (50%) percent impairment to the lower right extremity. After the knee replacement surgery, Dr. Phillips testified that the impairment was thirty-seven (37%) percent. MIS argues that the trial court increased the disability award and required MIS to pay an additional fifteen (15%) percent disability in addition to the forty (40%) percent award agreed to in the prior settlement in spite of the lowered impairment rating offered by Dr. Phillips.
Finally, MIS argues that the trial judge erred in awarding twenty-eight (28%) percent vocational disability to Andrews’ left leg. MIS shows that Andrews is educated, continues his trade as an electrician and currently earns more at MIS than before the injury to his left knee. They point out that he suffered only a four (4%) percent impairment to the lower left extremity according to Dr. Gavigan and he is capable of conducting the activities he performed prior to the work-related accident.
The extent of vocational disability is a question of fact for the trial court to determine from all the evidence and the medical expert’s rating of anatomical disability is merely one of a number of factors used to make this determination. Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 458 (Tenn. 1988). In making an assessment of vocational disability the trial court considered lay and expert testimony, employee’s age, education, skills, training, local job opportunities, capacity to work and types of employment available in claimant’s disabled condition.
Andrews was 53 years old at the time of the trial, and he is now unable to handle jobs that require crawling or squatting and can no longer perform activities associated with being a lineman due to a lack of stability in the left knee. He has lost the ability to perform certain activities as a private electrician. Additionally, Dr. Phillips testified that the right knee replacement would last only 12 to 15 years. Andrews continues to suffer from instability and swelling in the left knee. Dr. Gavigan noted that he would place additional restrictions on
Andrews if he continued to suffer pain by squatting or bending.
We find that the evidence does not preponderate against the judgment of the trial court. The judgment of the trial court is affirmed.
The costs of this appeal are assessed to the appellant, Maintenance and Industrial Services, Inc.,
ORDER
This case is before the Court upon the motion for full court review filed by Maintenance and Industrial Services, Inc. and CNA Insurance Companies 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.
It appears to the Court that the motion for full court review was not timely filed, and this Court is therefore without jurisdiction to consider the merits of the motion. The Panel’s findings of fact and conclusions of law, which are incorporated by reference, are adopted and affirmed. The decision of the Panel is made the judgment of the Court.
Costs are assessed to Maintenance and Industrial Services, Inc. and CNA Insurance Companies, for which execution may issue if necessary.