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Bain v. UTI Integrated Logistics LLC

Supreme Court of Tennessee, Jackson

October 16, 2019

DEBORAH L. BAIN
v.
UTI INTEGRATED LOGISTICS LLC, ET AL.

          Session April 22, 2019

          Mailed August 1, 2019

          Appeal from the Circuit Court for Benton County No. 16-CV-11 Charles C. McGinley, Judge

         Deborah Bain ("Employee") worked for UTI Integrated Logistics LLC ("Employer") as a shuttle truck driver. She sustained a compensable injury to her right shoulder and right wrist in August 2010 and entered into a settlement agreement with Employer. After returning to work, she suffered an injury to her left shoulder in January 2013. The trial court found that Employee is not permanently and totally disabled, that the 1.5 times cap applies for purposes of both reconsideration of the August 2010 injury and assessment of the January 2013 injury, that she has a 6% medical impairment rating for the January 2013 injury, and that Employer is not responsible for expenses related to treatment she sought on her own. Employee has appealed these rulings. Employer has appealed the trial court's award of further temporary total disability benefits. 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 pursuant to Tennessee Supreme Court Rule 51. We affirm the trial court's judgment.

         Tenn. Code Ann. § 50-6-225(e) (2014) (applicable to injuries occurring prior to July 1, 2014) Appeal as of Right; Judgment of the Circuit Court Affirmed

          Jeffrey A. Garrety and Charles L. Holliday, Jackson, Tennessee, for the appellant, Deborah Bain.

          Alex B. Morrison and Ryan C. Edens, Knoxville, Tennessee, for the appellees, UTI Integrated Logistics LLC and New Hampshire Insurance Company.

          Ronald W. McNutt (at trial), Erin Shackelford (brief), and Matthew D. Cloutier (argument), Nashville, Tennessee, for Second Injury Fund.

          William B. Acree, Jr., Sr.J., delivered the opinion of the court, in which Roger A. Page, J. and Robert E. Lee Davies, Sr.J., joined.

          OPINION

          WILLIAM B. ACREE, JR., SENIOR JUDGE

         Factual and Procedural Background

         Employee, age 60 at the time of trial, is a high school graduate whose job history consists primarily of operating sewing machines and driving trucks. Many years ago, she received computer training, completed a paralegal course, and also a tax preparation course. However, her experience in those types of work was minimal. She began working for Employer as a shuttle truck driver in June 2010. Her job hauling trailers for short distances required her to constantly climb in and out of the truck, hook and unhook air lines, crank the trailer's dolly legs up and down, and pull the fifth wheel pin to release the trailer. The job involved repetitive use of her shoulders and wrists.

         On August 25, 2010, Employee fell from a truck and injured her right shoulder and right wrist. She underwent surgery but continued to have pain. She went to Dr. Jason Todd Hutchison for an independent medical examination on November 21, 2012. He recommended she avoid heavy lifting, which was defined as greater than 10 pounds more than 20 times in an hour. Upon returning to work on light duty, she took a clerical position in the office. When she resumed her regular job as a shuttle truck driver, Employer accommodated her by providing a truck that was easier for her to operate and recognizing that she worked slower than other drivers. On January 11, 2013, she entered into a settlement agreement with Employer for 19.5% permanent partial disability for the right arm injury, which was equal to 1.5 times a medical impairment rating of 13% to the body as a whole. She agreed to have Dr. Hutchison continue as her authorized treating physician for the August 2010 injury.

         On January 23, 2013, Employee injured her left shoulder while attempting to pull the fifth wheel pin to release a trailer. She saw Dr. Hutchison about her left shoulder pain. He ordered an MRI, which was done on September 26, 2013. He diagnosed rotator cuff tendonitis and impingement syndrome, with "probably some partial thickness tearing within it." He placed her at maximum medical improvement on October 16, 2013, and assigned an impairment rating of 1% to the body as a whole for rotator cuff tendonitis. At an office visit on October 3, 2013, Dr. Hutchison told Employee that he did not believe she needed surgery and that her complaints were disproportionate to the findings and MRI. He felt that there was some functional or psychological overlay that was preventing her from getting through this. He told her that he could not help her further.

         On February 19, 2014, Dr. Apurva R. Dalal saw Employee, at her attorney's request, for an independent medical examination concerning her January 2013 left shoulder injury.[1] He diagnosed a left shoulder rotator cuff tear involving supraspinatus tendon and "strongly advise[d] her to undergo left shoulder arthroscopy with subacromial decompression possibly with rotator cuff repair and possible distal clavicular excision."

         Matthew Nowakowski testified that he was previously the manager for operations with responsibility of safety and quality and training. Mr. Nowakowski said that at some point Employer made the decision that Employee's workers' compensation claim was concluded because Dr. Hutchison said he didn't feel there was anything to do for her and he was not going to see her again.

         On May 28, 2014, Employee sought treatment from Dr. Gerald Blake Chandler on her own initiative. In his view, the September 2013 MRI revealed a partial rotator cuff tear with some tendonitis and some AC joint arthritis. He determined that she needed left shoulder surgery.

         On July 11, 2014, Employee requested family medical leave because of her surgery and also expressed a desire to sign up for disability. She did not ask that her surgical expenses be paid by workers' compensation insurance. Employee made this request to Angie Harris, manager of the Human Resources Department by a handwritten note.

         Dr. Chandler performed the surgery on August 1, 2014. He described the surgery as follows:

[Y]ou could see the full thickness tear of the rotator cuff with a large bone spur off the tip of the acromion and the hypertrophic changes of the AC joint which were pinching on the rotator cuff where the muscle because tendon, and there was a very thick bursa, so we removed the bursa, we released the coracoacromial ligament. We removed the distal clavicle and the bone spur on the front of the acromion, and then we proceeded to repair the rotator cuff.

         Dr. Chandler was not aware that he was treating a work-related injury. (Employee's health insurance paid the medical expenses associated with Dr. Chandler's treatment and surgery.) He testified that had he known there was a workers' compensation injury, he would have ordered a functional capacity examination to determine whether to place permanent restrictions on her. He also told Employee that he thought she would do well in finding a new line of work. He testified that:

Q. Doctor, did you have an opinion on that day in March of 2015 as to whether or not this lady's need to continue off work was necessary and, secondly, whether or not she would be able to tolerate or return to truck driving?
A. Yes. I had a discussion with her on that date that I thought it was best for her to continue off work because I didn't think she would be able to tolerate it with her overhead lifting and pushing and pulling of the weights that she had that seemed to keep aggravating her symptoms of pain. And she would get short-term relief from the Cortisone injections but no long-term pain relief, and I told her that I thought she would do well in finding a new line of work.
Q. Doctor, with regard to your note indicating that she was getting continued aggravation with pushing and pulling and lifting, do you have an opinion - I know you did not send her for an FCE in this case, but do you have an opinion as to what you would recommend in hopes of maintaining the best results from this surgery?
A. I think that with her symptoms and her range of motion and weakness that she would have difficulty with work above shoulder level. She would have difficulty with pushing or pulling a certain poundage, which an FCE would certainly be beneficial on. But I think there would be a certain limitation there that would cause her difficulty with pushing and pulling of weight.

         Dr. Chandler opined that Employee had 10% left upper extremity impairment and 6% whole person impairment. He did not place her at maximum medical improvement, but said if he had, it would have been on May 27, 2015, the date he gave her the impairment rating.

         On March 23, 2015, less than a week after her last appointment with Dr. Chandler, Employee submitted a letter of resignation to Employer. The letter was addressed to the attention of Angie Harris, Human Resources and said:

I am hereby notifying you that because of the past injury and all of the previous injuries sustained to my body, also the recommendation of my physician, Dr. Blake Chandler, that I can no longer perform the duties of this job. I have no choice ...

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