Sheree Sapp v. Covenant Transport, Inc.,

This workers' compensation appeal has been referred to theSpecial 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. In this appeal, the employer and its insurer contend: (1) the trial court erred in finding the employee's carpal tunnel syndrome to be work-related; (2) the trial judge's comments concerning a potential expert and matters not in evidence demonstrated bias and lack of impartiality; (3) the trial court erred in not finding the employee's unilateral initiation and selection of medical treatment and refusal to report for light duty barred any claim for temporary total, permanent partial and/or medical benefits; (4) the trial court erred in finding that adequate and proper notice of a workers' compensation claim was provided; (5) the trial court erred in assessing bad faith penalties on outstanding medical expenses, temporary total disability benefits and accrued permanent partial disability benefits; (6) the trial court erred in finding that it was appropriate that the employee's attorney put in the record counsel's attendance at the employer's medical examination, and thus attempting to bolster the testimony of the employee; and (7) the trial court's award of permanent partial disability benefits was excessive. As discussed below, the panel has concluded the trial court erred in assessing a 25 percent penalty on accrued permanent partial disability benefits and in assessing a penalty on unpaid medical benefits, but that the judgment should otherwise be affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Criminal Court Affirmed in part; Reversed in part; Modified in part. LOSER, SP. J, in which BIRCH, J. and PEOPLES, SP. J., joined. Robert J. Uhorchuk, Spicer, Flynn & Rudstrom, Chattanooga, Tennessee, for the appellants, Covenant Transport, Inc. and Travelers Insurance Companies. William Joseph Butler, Debbie C. Holliman, Farrar & Holliman, Lafayette, Tennessee, for the appellee, Sheree Sapp. MEMORANDUM OPINION At the time of the trial on February 1, 2, the employee or claimant, Sheree Sapp, was 43 years old and a high school graduate with experience as a convenience store worker and truck driver. After previously working for Covenant, she returned to work there in late May 1977. At the time, she was having general aches and pains in her hands, but had never experienced any tingling and numbness. She passed a physical examination before returning. Her duties required her to drive a truck and to help load, unload and drop trailers and refuel the tractor. By January of 1998, she was having pain, tingling and numbness in both hands. She reported the problems to her dispatcher at Covenant. She was eventually referred to Dr. Paul Abbey, whom she visited on June 12, 1998. On the same day, she notified her employer that she believed the condition was work related. The employer filed a First Report of Work Injury with the workers' compensation division of Tennessee on the same day. The employer told the claimant that she would be required to go to Chattanooga to be evaluated by a workers' compensation insurance company physician, stay in a motel and work in Covenant's offices in Chattanooga to have any chance of collectingworkers' compensation benefits. The claimant lives in Smith County, a drive of more than 15 miles from Chattanooga. She refused to drive to Chattanooga for an examination and evaluation. She received a letter from John Orum, a claims representative representing Covenant, denying workers' compensation benefits because, he said, ". . . After a careful review of your claim for Workers' Compensation benefits, we have determined that your carpal tunnel syndrome did not arise out of your employment with Covenant Transport, Inc." The letter was dated July 13, 1998. It is undisputed in the record that the claimant told Sheila Simpson-Murray, workers' compensation manager for Covenant, on June 12, 1998, that she had a work-related injury. At trial, Mr. Orum admitted that he actually made no investigation of the claim and that normally he would call the employee, the employer and the physician. He did not call Ms. Sapp or Dr. Abbey before denying this claim. The record contains conflicting evidence as to whether Ms. Murray offered the claimant a panel of three physicians from which to choose a treating one. The claimant says she did not; Ms. Murray says she did, but concedes all three were in Chattanooga, and admits she never offered the name of a treating physician as close to Smith County as Nashville, all on the advice of Orum. Additionally, the only light duty offered to the claimant was in Chattanooga. The claimant did not wish to drive all the way to Chattanooga for light duty work or medical care. Dr. Abbey continued to treat the claimant and eventually performed carpal tunnel surgery on both arms. She continued to have problems after surgery. The doctor's testimony regarding causation, though equivocal, was that the claimant's condition could have been work-related. Our independent examination of the record reveals no evidence that the injury resulted from an occurrence that was not work-related. Dr. Cornelius J. Mance, a neurologist, examined the claimant and found no evidence of carpal tunnel syndrome, but said he regularly saw truck drivers with the condition and would defer -2-