Gwendolyn Sue Mulkey v. Palm Beach Company

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The appeal has been perfected by the employee, Gwendolyn Sue Mulkey, from a decision of the trial court resulting in a dismissal of the complaint. The Circuit Judge found the employee had failed to establish she had sustained an injury as a result of her work activities on August 13, 1993. Plaintiff, age 42 years, had worked for defendant, Palm Beach Company, for a number of years. She was engaged in sewing work when she said she was lifting a bundle of coats and felt something pull in her neck. Later the same day, she testified she was lifting above her head and felt a pull in her low back. She went to see a doctor furnished by her employer and was returned to light duty work. She continued working until January 31, 1994, when she was terminated because the employer concluded there was no work available under the restrictions imposed by the doctor. She eventually found other employment and was working 2-22 hours a week as a janitor. She testified this type of work caused her neck and back to hurt. The record indicates that she had sustained several work-related injuries in previous years and had been treated for a rib injury, a carpal tunnel syndrome injury and a shoulder injury. All of the expert medical testimony was by deposition. Dr. Jonathan N. Degnan, an orthopedic surgeon, first saw plaintiff on March 17, 1994, which was about seven months after the activities in question. He testified she complained of neck pain on the initial visit but did not complain of low back problems until the September 1994 visit. He found degenerative disc disease which was not work-related. He gave her a 9% impairment to the body as a whole and related the injury to her work duties upon the assumption the history given to him was accurate. In giving the history, she told the doctor she had recovered from all prior injuries and was not suffering from neck and back pain before August 1993. Dr. Robert E. Finelli, a neurosurgeon, testified he had treated plaintiff for some of her prior injuries. He saw her during March 1993 (about 5 months before incident) and she had complaints then of neck and arm pain. He next saw her on 2