Elmore v. Travelers Insurance Co.

824 S.W.2d 541, 1992 Tenn. LEXIS 44
CourtTennessee Supreme Court
DecidedJanuary 27, 1992
StatusPublished
Cited by28 cases

This text of 824 S.W.2d 541 (Elmore v. Travelers Insurance Co.) 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
Elmore v. Travelers Insurance Co., 824 S.W.2d 541, 1992 Tenn. LEXIS 44 (Tenn. 1992).

Opinion

OPINION

ANDERSON, Justice.

In this worker’s compensation case, the trial judge found that the plaintiff did not *542 suffer permanent disability as a result of a work-related injury and dismissed the claim. The plaintiff appeals, contending the evidence preponderates against the trial judge’s finding. After reviewing the record, we affirm the trial court’s judgment.

FACTUAL BACKGROUND

On December 8, 1988, the plaintiff, Louise Elmore, went to work for O’Charley’s Restaurant in Brentwood, which was insured for worker’s compensation by the defendant, Travelers Insurance Company. While working as a waitress on December 21, 1988, the plaintiff slipped and fell, landing on her buttocks and back. She was immediately taken by a supervisor to meet her chiropractor, Dr. Thaddeus Swiatek, at his office. Dr. Swiatek diagnosed her problem as acute lumbosacral strain, began a course of treatment, and allowed the plaintiff to return to work. On February 16, 1989, he released her with no residual impairment. She missed four days of work before she quit her job on April 2, 1989. After leaving her job at O’Charley’s, the plaintiff held various other jobs, but she says she has had difficulty performing them because of back pain.

The plaintiff first saw Dr. Swiatek on December 19, 1988, two days before her fall at O’Charley’s. When she arrived at Dr. Swiatek’s office, she filled out a case history questionnaire. On this questionnaire, she noted that she had been in two previous automobile accidents and cited her major complaint as “lower back soreness ( & tailbone) & mid-back, neck, & between shoulder blades — stiff.” She also answered affirmatively questions asking whether she had recently experienced neck pain or spasm, mid-back pain, and low back pain or spasm.

The plaintiff did not see Dr. Swiatek on a regular basis again until June of 1989. After walking around the Summer Lights Festival in Nashville for several hours and working out on Nautilus equipment, she complained to Dr. Swiatek of pain in her legs and back. Following this incident, Dr. Swiatek treated the plaintiff regularly until August of 1990. During this period, Dr. Swiatek noted significant instability and loss of motion in the plaintiff’s neck and back. He thought her work-related fall had resulted in a permanent back injury and assessed her present disability at 15 percent of the body as a whole.

In August of 1990, the plaintiff became dissatisfied with Dr. Swiatek and went to see another chiropractor, Dr. Lensgraf, upon the recommendation of her attorney. Her problem was diagnosed by Dr. Lens-graf as “a chronic cervical and lumbar strain/sprain type syndrome.” He thought she had a permanent partial disability of 9 to 11 percent, and also thought that her condition was not caused by walking around Summer Lights or working out, but rather by the work-related fall.

Dr. John C. Mclnnis, a board certified orthopedic surgeon who had trained at Mayo Clinic, first examined the plaintiff on August 31, 1989, after it was reported to her employer that she was claiming that her condition was related to the O’Charley’s fall. She selected his name from a list of orthopedic surgeons supplied to her by the defendant. Dr. Mclnnis also examined her three other times, twice in December of 1989 and once in May of 1990.

During these examinations, Dr. Mclnnis performed a number of diagnostic tests, including x-rays, a bone scan, and a CT scan of the low back, all of which he found to be normal. In addition, Dr. Mclnnis reviewed x-rays taken by Dr. Swiatek and performed his own range of motion tests. He found the x-rays taken by Dr. Swiatek to be normal, and determined that the plaintiff’s range of cervical and lumbar motion was within normal limits. He found no muscle spasms, muscle atrophy, back inflammation, nerve root problems, or disc pathology. Based upon his examinations, Dr. Mclnnis was of the opinion that the plaintiff suffered no permanent partial impairment as a result of her work-related fall.

The evidence at trial on November 7, 1990, revealed that the plaintiff had suffered from drug and alcohol addictions at an early age, but now considers herself *543 recovered. She moved to California at age 20 and lived there approximately 11 years. While there, she held a number of secretarial and sales jobs, only one of which she held for over one year. Also while there she was involved in two automobile accidents.

The first accident occurred in 1984, and resulted in injuries to her upper back, shoulders, and neck. She was treated by a physician and thereafter a physical therapist, who introduced her to holistic medicine. Later, she began seeing a chiropractor-nutritionist and began using chiropractic care to “increase my general sense of vitality and well being.”

Her second accident occurred on August 29,1988, shortly before the plaintiff’s move to Tennessee. She described this accident as minor, but said she did experience some soreness in her neck afterwards and had it checked by her chiropractor.

She moved to Tennessee on September 15, 1988, and sought the services of a local chiropractor. She established a relationship with Dr. Ken McIntosh, who treated her from September 30 until December 14, 1988. Thereafter, the plaintiff changed her chiropractic care over to Dr. Swiatek, a newly-licensed chiropractor whose wife was a fellow employee at O’Charley’s.

TRIAL COURT FINDING

The trial judge found that the plaintiff suffered a compensable injury during the course of her employment on December 21, 1988, but “failed to carry her burden of proof (1) that she suffers any permanent disability, and (2) that the December 21 accident proximately caused her current condition.” In that connection, the trial judge commented in her memorandum opinion:

In making its finding, the Court has given more weight to the testimony of Dr. Mclnnis and the opinion of Dr. Swiatek at the time he originally released plaintiff, and little to all other opinions, based on their experience, methods used, the time frames of the examinations, the lack of knowledge of plaintiff’s complete medical history, and other factors. Since no permanent disability has been established by medical testimony, the Court has not had to consider at all the psychologist’s testimony regarding vocational disability.
The Court specifically notes that plaintiff had experienced back pain in some form since her 1984 auto accident. Both before, during, and since her accident and recovery, she has regularly chosen to receive chiropractic treatment. She did not specifically reveal her past history, or her 1988 accident, to any doctors who treated her after her fall. In June, 1989, plaintiff through her work on nautilus equipment and her activities at Summer Lights experienced a new injury and/or symptoms of pain which have not been shown to relate causally to the December, 1988 accident.

(Emphasis in original.) The trial judge dismissed the plaintiff’s complaint, holding that she was not entitled to any permanent partial disability benefits or additional medical expenses.

Our review of findings of fact by the trial court is de novo

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Bluebook (online)
824 S.W.2d 541, 1992 Tenn. LEXIS 44, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elmore-v-travelers-insurance-co-tenn-1992.