White v. Werthan Industries

824 S.W.2d 158, 1992 Tenn. LEXIS 27
Tennessee Supreme Court·Decided January 6, 1992·Published·Cited by 22 cases

Opinion

OPINION

DAUGHTREY, Justice.

In this workers’ compensation case, the employer appeals the judgment of the trial court awarding 50 percent permanent disability to the injured employee. The appellant questions the sufficiency of causation. For reasons set forth below, we agree with the findings of the trial judge and affirm.

The employee-appellee, James M. White, began working for the appellant, Werthan Industries, as early as 1981. He has a long history of disabling conditions. White was born with a congenital hip displacement, which required a total hip replacement in 1975. He testified that he has walked with an abnormal gait ever since that operation.

In 1982, White suffered an on-the-job injury that apparently marked the beginning of the difficulties which led to the disability in this case. While lifting a box of unknown weight, he felt a sharp pain in his back. After the injury, he wore a back brace and could not work for several weeks. He did not, however, claim work *159 ers compensation. For several years following that injury, White’s back occasionally “went out,” but he did not seek further medical care.

The appellee injured his knee while operating a tractor in October 1987 and underwent surgery for that condition in February 1988. The injury was not work-related. Early in 1989, the appellee strained his back while stepping off a tractor at his father’s farm. Complaints of hip and back pain led his treating physician, Dr. G. William Davis, to perform a percutaneous dis-cectomy in April 1989, a procedure which Dr. Davis described as minimally invasive and successful in 70 percent of patients. The back pain persisted, however, and in August of that year, White and Dr. Davis discussed the possibility of additional surgery.

White returned to Dr. Davis on January 8,1990, because of his continued back pain. Surgery was once again discussed, but at that time, no definite plans for surgery were made and a stronger pain medication was prescribed instead. The next day, White slipped and fell on a wet floor at work. He was taken to a local hospital and operated on by Dr. Davis on January 18, 1990. The surgery, a spinal fusion, involved the removal of a large herniated disc. Although it decreased, White’s pain persisted.

Following the second back surgery, White was unable to find suitable employment. He could not do work around his residence and relied on the financial assistance of his wife and his parents. His wife held two jobs, and his parents purchased his home so that he would not lose it.

The trial court heard the testimony of the appellee and his wife and reviewed deposition testimony of Dr. Davis in concluding that White had suffered a compen-sable injury. The court assessed a 50 percent permanent disability to the body as a whole. The finding was based in part on Dr. Davis’s rating of 12 to 15 percent anatomical impairment to the body, and the judge’s finding that the appellee could nevertheless secure other employment. The amount was commuted to a lump sum to enable White to repurchase his home from his parents.

On appeal, this Court reviews the findings of the trial court utilizing a de novo standard accompanied by a presumption of correctness. T.C.A. § 50-6-225(e). Accordingly, we must affirm unless we find that the evidence preponderates against the ruling of the trial court.

In challenging that ruling, the appellant complains principally about an alleged mistaken finding of fact by the trial court, contending that the judge did not take into account the 1989 tractor accident. Even if the appellant is correct in this contention, however, the result remains the same. The existence of a prior disabling condition does not preclude a workers’ compensation award where a work-related injury aggravates that pre-existing condition. Modern Upholstered Chair Co. v. Russell, 518 S.W.2d 519, 522 (Tenn.1974); Wheeler v. Glens Falls Insurance Co., 513 S.W.2d 179, 184 (Tenn.1974); Swift & Co. v. Howard, 186 Tenn. 584, 212 S.W.2d 388, 391 (1948).

The only real issue in dispute is the adequacy of causation. At the outset, we note that absolute medical certainty is not required to establish causation. Chapman v. Employer’s Insurance Co., 627 S.W.2d 122, 123 (Tenn.1981); Foster v. ESIS, Inc., 563 S.W.2d 180, 183 (Tenn.1978). Although causation cannot be based upon speculative or conjectural proof, Smith v. Empire Pencil Co., 781 S.W.2d 833, 835 (Tenn.1989); Simpson v. H.D. Lee Co., 793 S.W.2d 929, 931 (Tenn.1990), reasonable doubt is to be construed in favor of the employee. Hall v. Auburntown Industries, Inc., 684 S.W.2d 614, 617 (Tenn.1985); see Tapp v. Tapp, 192 Tenn. 1, 236 S.W.2d 977 (1951). The causal connection may be established by expert opinion combined with lay testimony. Smith, supra, 781 S.W.2d at 835. Of course, the burden of proof on this issue, as with every essential element of the claim, lies with the employee. Roark v. Liberty Mutual Insurance Co., 793 S.W.2d 932, 934 (Tenn.1990); Smith, supra, 781 S.W.2d at 835.

*160 The evidence in the record supports the trial court’s finding that the January 9 fall aggravated White’s pre-existing back condition. At the time of the office visit on January 8, Dr. Davis believed that surgery was a real possibility, but he hoped that an operation could be avoided, and he had not made definite plans for any surgical procedures. The appellee testified that prior to the January 9 incident, he remained unconvinced that he should undergo more surgery.

After the fall, White was immobilized. He could not raise himself off the floor without assistance. He stayed home from work and was unable to do much of anything other than lie in bed. When he did get out of bed, he had to use a cane, taking “baby steps” to move around, and he relied on the assistance of his wife and father to attend to his needs.

Dr. Davis scheduled surgery almost immediately after the fall. He testified that it was unusual to arrange for surgery so rapidly, but that it appeared necessary under the circumstances. The doctor was unable to say with complete certainty that the January 9 incident exacerbated White’s pre-existing condition, but he did state that the injury could have aggravated the ailment.

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White v. Werthan Industries, 824 S.W.2d 158, 1992 Tenn. LEXIS 27 (Tenn. 1992).

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