Smith v. Empire Pencil Co.

781 S.W.2d 833, 1989 Tenn. LEXIS 531
CourtTennessee Supreme Court
DecidedDecember 4, 1989
StatusPublished
Cited by10 cases

This text of 781 S.W.2d 833 (Smith v. Empire Pencil 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
Smith v. Empire Pencil Co., 781 S.W.2d 833, 1989 Tenn. LEXIS 531 (Tenn. 1989).

Opinion

OPINION

O’BRIEN, Justice.

The defendants have appealed the judgment of the trial court in this workers’ compensation case awarding temporary total disability, permanent partial disability, *834 and certain medical expenses to the plaintiff.

In the issues presented for review it is asserted the trial court erred in finding that plaintiff had sustained a compensable injury; had erred in making an award of temporary total disability benefits; and had committed error in making an award of permanent partial disability to the body as a whole rather than to a scheduled member.

The standard of review for this Court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings below, unless the preponderance of the evidence is otherwise. T.C.A. § 50-6-225(e), as amended.

On the issue of causation, the plaintiff testified that on 26 April 1986 she had been employed by Empire Pencil Company for approximately 18 years. On that day, while lifting boxes of packaged pencils from a conveyor belt near the floor to a table where she was processing them for shipment, she felt a sharp pain in her right shoulder. . She rested for a few moments and then attempted to continue her work. She was unable to lift any more during that day. She reported to her foreman that she had hurt her shoulder lifting a box. She did not make her time or fill her production quota for the day. The incident occurred on a Saturday when the first-aid room was closed. She utilized a heating pad over the weekend and on Monday morning when she went to work she reported to the company nurse that she had picked up the box and injured her shoulder.

Defendant continued to report to work and worked the entire week beginning April 28. She worked nearly 40 hours on the week beginning 6 May 1986 and all of the following week. She testified that during all this time her shoulder was hurting her. She tried to work but had to have help from the people working on the machine with her. She could not carry her end of the load. On 6 May 1986 she made an appointment with Dr. John Johnson a rheumatologist who had been treating her for other conditions. She saw him several times during the ensuing month. On 22 May, while preparing her lunch to go to work, she closed a kitchen drawer and felt her shoulder pop. She saw Dr. Johnson that day. Ultimately on 6 June, 1986 he referred her to Dr. Eugene M. Regen, an orthopedic specialist. He diagnosed her problem as a torn rotator cuff and hospitalized her to repair the injury surgically.

Medical proof was by deposition of Dr. Regen and that of Dr. Richard Fishbein, who saw Mrs. Smith in May of 1988 for the purpose of evaluation. The doctors were in complete accord about the nature of Mrs. Smith’s injury. They differed sharply and radically on the issue of causation and com-pensability. Dr. Regen testified that based upon his observation of plaintiffs shoulder during surgery the rotator cuff tear did not occur as a result of the 26 April 1986 work incident and it had occurred six to ten months prior to that occurrence. According to Dr. Regen the work incident only momentarily strained or trapped tissue that was already torn. He testified that the episode which caused Mrs. Smith to be symptomatic and led to his treatment and surgery was the occasion when she shut the drawer at home. He rated her anatomical impairment at thirty percent (30%) to the right upper extremity, as a result of her shoulder condition, but would not relate any of his rating to the incident at work. He also indicated that from an industrial standpoint, plaintiff was substantially, functionally disabled. He recommended that she should not return to work and risk disrupting her shoulder again.

Dr. Fishbein testified that he had been asked to perform an independent medical evaluation by the plaintiff. Prior to performing that task he reviewed her deposition and the deposition of Dr. Regen. He took a detailed history from Mrs. Smith regarding the incident on 26 April 1986 and reviewed her medical records and reports from Dr. Regen. He expressed the opinion that plaintiffs work episode on 26 April 1986 had caused the rotator cuff tear. He *835 was equally certain that she could not have worked at her employment prior to 26 April 1986 if the “complete tear” found in surgery had existed prior to the box-lifting incident on that date. He also expressed the opinion that because plaintiff was asymptomatic prior to 26 April 1986, having had no problems with the shoulder or in performing her work he had no doubt that there was a direct causal relationship between the box-lifting episode and the complete tear of the rotator cuff. He assigned a permanent anatomical impairment rating of thirty-five percent. (35%) to the right upper extremity and indicated that plaintiff was severely functionally limited because of the residual effects of her injury.

There was also lay testimony other than that of the plaintiff in reference to the nature and extent of her disability.

This Court has consistently held that causation and permanency of a work-related injury must be shown in most cases by expert medical evidence. Tindall v. Waring Park Association, 725 S.W.2d 935, 937 (Tenn.1987). However, a plaintiff is competent to testify with respect to his own physical condition and disability. Floyd v. Tennessee Dickel Distilling Company, 463 S.W.2d 684, 225 Tenn. 65 (1971). If, upon undisputed proof, it is conjectural whether disability resulted from a cause operating within petitioner’s employment, or a cause operating without employment, there can be no award. Tindall v. Waring Park Association, supra. If, however, equivocal medical evidence combined with other evidence supports a finding of causation, such an inference may nevertheless be drawn by the trial court under the case law. Tindall, supra, (citations omitted).

We concur with the trial court’s finding that the notice to the employer was adequate under the circumstances of this case and that Mrs. Smith sustained a compensa-ble accident during the course and scope of her employment with Empire Pencil Company on 26 April, 1986.

The trial court was also correct in the award of temporary total disability benefits. Of course the (¡urden of establishing entitlement to compensation is on the claimant. See Wade v. Aetna Casualty & Surety Co., 735 S.W.2d 215, 220 (Tenn.1987). The trial judge held that plaintiff’s temporary total disability began 7 June 1986, the day after her last day of employment, and ended on 9 December 1986. Plaintiff testified she was prepared to go back to work on that date until she discussed the matter with Dr. Regen. After examining her he advised her to go ahead and make arrangements to retire to avoid any risk of reinjury to her shoulder. She reported to her employer on that day that she could not return to work. While Dr.

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Bluebook (online)
781 S.W.2d 833, 1989 Tenn. LEXIS 531, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-empire-pencil-co-tenn-1989.