Boone v. BICS of Tennessee, Inc.

775 S.W.2d 359, 1989 Tenn. LEXIS 398
CourtTennessee Supreme Court
DecidedAugust 7, 1989
StatusPublished

This text of 775 S.W.2d 359 (Boone v. BICS of Tennessee, Inc.) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boone v. BICS of Tennessee, Inc., 775 S.W.2d 359, 1989 Tenn. LEXIS 398 (Tenn. 1989).

Opinion

OPINION

COOPER, Justice.

In this worker’s compensation case, the trial court awarded Naomi Ruth Boone benefits for a permanent partial disability of fifty percent to the body as a whole. Appellants insist that the evidence preponderates against the trial court’s holding that the injury was compensable. They also question the percentage of disability awarded, and the direction that benefits due appellee be paid in a lump sum. In turn, appellee insists the trial court erred in failing to find that she was permanently and totally disabled, and in dismissing the Second Injury Fund from the case. On our review, we affirm the judgment of the trial court on all issues except the order that benefits be paid in a lump sum.

Appellant, BICS of Tennessee, Inc., is a maintenance and janitorial company under contract to perform services in the Nissan plant in Smyrna, Tennessee. It maintains a trailer-office on Nissan premises and its employees are stationed throughout the Nissan complex on a full-time basis.

BICS entered into its contract with Nissan in December, 1985. Appellee, who was then working for BICS’ predecessor, was employed by BICS as a technician and was assigned to work in the Nissan Training Center. According to BICS, appellee’s duties “consisted of general janitorial duties such as cleaning, mopping, sweeping, dusting, basic housekeeping duties to include watering) plants, mov(ing) light furniture in connection with the cleaning duties.” Appellee testified that she also was instructed by her supervisor, Larry Leslie, that “setting up and taking down classrooms was part of her job,” and that he knew she regularly performed this task. Mr. Leslie was not called as a witness by BICS to contradict this testimony, though he still is working for BICS at the Nissan plant.

The record shows that in late December, 1985, Ms. Boone experienced pain in her lower back, which she could not relate to any specific event. Subsequently, she underwent a laminectomy at the L5-S1 level for the removal of a herniated disc. She [361]*361was released by her treating physician to return to work on February 26,1986, without limitation or restriction on her physical activities.

Ms. Boone worked for BICS without incident until May 2, 1986, when she injured her back breaking down a classroom by laying tables on their sides and folding the legs. Ms. Boone immediately told Eric Little, a classroom instructor employed by Nissan, of her injury and her inability to complete her assigned work. Ms. Boone testified that she then attempted to locate her direct supervisor with BICS; that when she was unable to contact her supervisor, she made a telephone call to the trailer-office of BICS and told one of the ladies in the personnel office that she had injured her back breaking down tables and that it would be necessary for personnel to send another employee to finish her work as she was going to sign out and go home. Ms. Boone testified that she then walked from the Nissan Training Center to the BICS’ office where she signed out in the presence of Gayle Perry and Janice Green.

On Monday, May 5, 1986, Ms. Boone went to see Dr. David Gaw, who had performed the earlier laminectomy. She worked for BICS on May 6 and May 7, 1986, and then was off from work until June 28, 1986. Ms. Boone testified that during the time she was off from work, she spoke with Mr. Richardson, the personnel manager of BICS, from time to time concerning her injury, treatment, and progress. The record also shows that Dr. Gaw completed at least two forms that were sent to BICS, one a disability insurance form, the other a Department of Labor Attending Physicians Report. Both forms carried the diagnosis of “aggravation of degenerative lumbar disc disease.” In the disability insurance form, which is dated May 28, 1986, Dr. Gaw did not complete question 6, which asked “if disability is due to an accident, did injury occur at work?” In the second report dated June 9, 1986, but received at a later date by BICS, the history of the injury was reported as “hurt her back moving some furniture at work.”

After her return to work on June 23, 1986, Ms. Boone worked until October 81, 1986. At all times she wore a heavy back brace prescribed by Dr. Gaw. Then, on November 6,1986, Ms. Boone underwent a second laminectomy at the L5-S1 inter-space. Dr. Gaw testified that the second laminectomy was necessitated by an injury independent of the one that caused the earliér laminectomy, and was consistent with the history of the work-related injury of May 2, 1986.

Appellee’s testimony on the issue of notice and the scope of her work assignment was sharply disputed by witnesses called in behalf of BICS. Employees in the personnel office where Ms. Boone checked out early could not recall either the telephone call on the morning of the injury or any conversation with Ms. Boone when they gave her the time sheet to sign for early check-out. They admitted that the policy of BICS was to require the employee to give a reason for an early sign-out, but could not recall talking with Ms. Boone when she checked out early. The personnel manager of BICS testified he had no conversation with Ms. Boone in which she claimed to have injured her back while working for BICS, and that he heard no conversation between his office staff and Ms. Boone at the time of the early checkout, though he was in the position to do so as his desk was located nearby. He also testified that the breaking down and setting up of classrooms in the Nissan Training Center was outside the work assignment of Ms. Boone.

The trial judge, who had the opportunity to hear the testimony and observe the witnesses, accepted Ms. Boone’s version of events and found that she sustained an injury in the course and scope of her employment for BICS and gave notice of her injury to BICS. On reviewing the evidence under the de novo standard of review prescribed in T.C.A. § 50-6-225(e), we can not say the evidence preponderates against the chancellor’s findings on these issues.

Appellants also question the finding that Ms. Boone had sustained a fifty percent [362]*362disability of the body as a whole. Specifically, they question the basis of the assessment of anatomical impairment by Dr. Gaw and the efficacy, in general, of Dr. Gaw’s testimony. They also insist that the medical evidence shows that Ms. Boone has not yet reached maximum medical recovery and that the assessment of physical impairment is premature. We find no merit in any of these arguments.

Both Dr. Rex Arendall, who saw Ms. Boone on referral, and Dr. David Gaw testified that Ms. Boone has a permanent physical impairment as the result of the injury of May 2, 1986, and the resulting laminectomy. According to Dr. Arendall, Ms. Boone’s EMG shows nerve damage as the result of the disc rupture, and the damage is permanent. He made no attempt to assess the percentage of anatomical impairment but deferred to the treating and operating surgeon, Dr. Gaw. Dr. Gaw testified that Ms. Boone’s physical activities are limited by the pain that radiates from her low back down the left leg, and that she cannot stand, sit or walk for any extended period of time, nor do work that requires lifting, stooping or bending. His assessment of her physical disability is twenty-five percent to the body as a whole, with one-half of the disability being due to the May 2, 1986, injury.

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Bluebook (online)
775 S.W.2d 359, 1989 Tenn. LEXIS 398, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boone-v-bics-of-tennessee-inc-tenn-1989.