Lambert v. Famous Hospitality, Inc.

947 S.W.2d 852, 1997 Tenn. LEXIS 308
CourtTennessee Supreme Court
DecidedJune 2, 1997
StatusPublished
Cited by12 cases

This text of 947 S.W.2d 852 (Lambert v. Famous Hospitality, 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
Lambert v. Famous Hospitality, Inc., 947 S.W.2d 852, 1997 Tenn. LEXIS 308 (Tenn. 1997).

Opinion

OPINION

DROWOTA, Judge.

In this workers’ compensation action, the employer, Famous Hospitality, Inc., defendant-appellant, has appealed from a judgment of the Circuit Court of Shelby County finding that the employee, Debra Lambert, plaintiff-appellee, sustained a 60 percent permanent impairment to the whole body due to a work-related shoulder injury. The trial court also directed the employer to pay various medical and litigation related expenses incurred by the employee, but did not require the employer to pay for future medical treatment by doctors that had been selected by the employee and who had treated her before trial. The Special Workers’ Compensation Appeals Panel, upon reference for findings of fact and conclusions of law pursuant to Tenn.Code Ann. § 50 — 6—225(e)(5), affirmed the trial court. Thereafter, the employer filed a motion for full Court review of the Panel’s decision pursuant to Tenn.Code Ann. § 50-6-225(e)(5)(B). We granted the motion to determine whether the employee should have been authorized to seek future medical treatment, at the employer’s expense, from doctors selected by her who had treated her injuries. After carefully examining the record before us and considering the relevant authorities, we affirm the trial court’s judgment except to the extent that the judgment does not authorize future medical treatment by the employee’s treating physicians at the employer’s expense.

The employee was 28 years old at the time of trial and possessed a high school diploma. She has completed one year of college. Her prior work experience consisted of working as a gas station attendant, convenient store worker, cashier, and performing heavy factory work. The employee had worked for the employer in this case, a printing company, for approximately nine months as a machine [853]*853operator when, on May 25, 1992, she injured her left shoulder as she was pulling a dolly out from under some heavy boxes. The employee immediately reported the injury to her supervisor. According to the employee, the supervisor responded with laughter and said “you’ll be alright.”

Although the employee promptly reported her injury to the employer, the employer did not provide the employee with a list of three physicians as required by Tenn.Code Ann. § 50-6-204(a)(4) from which she could select for medical treatment. Accordingly, the employee consulted the employer’s group medical insurance handbook and selected Dr. Dan Halford, who treated her shoulder injury conservatively and then referred her to Dr. E.B. Wilkinson of the Memphis Orthopedic Group. Dr. Wilkinson also treated the employee’s shoulder injury conservatively. He then sent her to another physician, Dr. Mark Harriman, because she was not improving. At the time the employee began seeing Dr. Harriman, an orthopedic surgeon, she was having difficulty moving her left shoulder and was unable to lift her left arm. Dr. Harriman performed corrective surgery on the employee’s left shoulder, and subsequently performed a second surgery to remove scar tissue. Dr. Harriman discharged the employee after she underwent several weeks of physical therapy. Although she continued to complain of severe pain and had considerable difficulty lifting, Dr. Harriman believed that there was nothing more he could do for her. He concluded that the employee had sustained a 7 percent permanent anatomical impairment to the body as a whole. The employer paid all medical costs associated with the care and treatment of the employee rendered by Doctors Halford, Wilkinson, and Harriman.

After her release by Dr. Harriman, the employee was still having considerable problems with her left shoulder, arm and hand. On July 13, 1998, she sought treatment from Dr. Tewfik Rizk, who specializes in chronic shoulder disorders. Dr. Rizk recommended a series of tests, but the employer refused to pay for them. When the tests were complete in March, 1994, at the employee’s expense, they showed that she had thoracic outlet syndrome. Dr. Rizk described thoracic outlet syndrome as a compression of the nerves and arteries from the neck leading to the shoulder. He testified that this condition was caused by the employee’s work-related accident on May 25, 1992. Dr. Rizk then referred the employee to Dr. Jacob Rosen-sweig for consultation. Dr. Rosensweig, a cardiovascular and thoracic surgeon, confirmed the diagnosis of thoracic outlet syndrome and performed corrective surgery. Following this surgery, the employee developed “reflex sympathetic dystrophy,” a complication of surgery affecting the nervous system. Dr. Rizk prescribed medication and recommended nerve blocks which the employee was unable to afford. He assessed a 36 percent permanent partial impairment to the whole body, and opined that one third of patients with the employee’s diagnosis never regain the use of their hand.' Another one third of patients have pain, numbness and a burning sensation “for years and years and years.” Dr. Rizk also opined that the employee might need further surgery and was limited to finding work requiring use of only one arm. He stated that the employee was still in need of medical care.

At trial, the court found that the employee had sustained a 60 percent permanent vocational disability to the body as a whole. Also, the court directed the employer to pay most of the employee’s expenses associated with her treatment under Dr. Rizk and Dr. Rosensweig. However, the court did not require the employer to pay for future treatment by either of these physicians. Although the trial judge required the employer to provide the employee with a list of physicians from which the employee could choose future treatment, neither Dr. Rizk nor Dr. Rosensweig was on this list. The court’s order stated in part that “if for any reason the services of any such doctor [on the list] should prove unsatisfactory, [the employee] shall have the right to petition the court for further review of her future medical care and management.” The Special Workers’ Compensation Appeals Panel affirmed the trial court’s ruling. We have carefully considered and agree with the resolution of all issues made by the trial court and Special Panel, except for the one dealing with the employ[854]*854ee’s continued treatment by Doctors Rizk and Rosensweig.

The only meritorious issue before us is whether the employee is entitled to reimbursement for post-trial medical expenses for continued treatment by Doctors Rizk. and Rosensweig. The pertinent statute, Tenn.Code Ann. § 50-6-204(a)(4), states that “[t]he injured employee shall accept the medical benefits afforded hereunder; provided, that the employer shall designate a group of three (3) or more reputable physicians or surgeons not associated together in practice ... from which the injured employee shall have the privilege of selecting the operating surgeon or the attending physician....” Tenn.Code Ann. § 50-6-204(a)(4). This statute plainly gives an employer the right to designate three physicians from which the employee is entitled to make a final selection.

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Bluebook (online)
947 S.W.2d 852, 1997 Tenn. LEXIS 308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lambert-v-famous-hospitality-inc-tenn-1997.