Whirlpool Corporation v. James Neville

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 plaintiff (employer) appeals the trial court's decision that the disc herniation in the defendant's (employee's) neck, resulting in cervical radiculopathy, was a gradually occurring injury that arose out of and in the course of his employment with the plaintiff. The plaintiff also appeals on the grounds that it contends that proper notice was not given and that the claim should have been barred by the statute of limitations. We affirm the decision of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court is Affirmed BYERS, SR.J., in which DROWOTA, J., and LOSER, SP.J., joined. David T. Hooper, of Brentwood, Tennessee, for the Appellant, Whirlpool Corporation. Jerry D. Mayo, of Nashville, Tennessee, for the Appellee, James Neville. MEMORANDUM OPINION Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial courts in workers' compensation cases. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). Facts The defendant (employee) was fifty-three years of age at the time of trial. He did not finish high school, but instead earned his graduate equivalency degree. He has also taken classes in mechanical engineering, electrical engineering , hydraulics, and pneumatics. He served as a policeman in Marinette, Wisconsin, for ten years before coming to Tennessee in 1981. His first job in Tennessee was as a maintenance technician and it was in this position that he came to work for the plaintiff company. The defendant's duties included repair work on a monorail and plumbing maintenance. He testified that most of his duties with the plaintiff company involved plumbing and the use of small tools. The defendant testified that he developed carpal tunnel syndrome out of his work with the plaintiff company and had carpal tunnel release surgery performed by Dr. Vaughan Allen on both hands in 1994. In 1995, he was released with a permanent restriction to avoid continuous flexion and extension of the wrists as well as repetitive work or lifting any objects over thirty-five pounds. He filed a claim for workers' compensation and that claim was settled in 1995 for 27.75 percent permanent disability to both arms and open future medical benefits. The defendant testified that he continued to have hand and arm pain over the following years and was treated for this pain with cortisone shots. The defendant also testified that in the early 199's he had had minor pain in his neck that came and went. He testified that on August 8, 1995, while trying to pull cables on a flat conveyor, he injured his neck but did not report this injury to his supervisor. On March 17, 1999, he reported to Employee Health regarding neck pain and he was treated there with heat on his neck. He testified that on April 24, 1999, while assembling and replacing heavy duty racks, he heard a loud pop and snap in his neck followed by excruciating pain. He testified that the next day his neck hurt very bad. This occurred over a weekend when Employee Health was closed, so he did not report the injury until the following Monday, during which time he continued to work. The defendant testified that he saw Dr. Allen on June 22, 1999, and told him of the neck pain he was having. Dr. Allen performed an MRI (magnetic resonance image) and then recommended surgery to the defendant's neck. Dr. Allen performed surgery on July 15, 1999. The defendant reported that the surgery relieved all his neck and shoulder pain. He returned to work on October 4, 1999, with no restrictions for his neck but still with the prior restrictions for his wrists and hands. After returning to work, he continued to have problems with his arms, wrists, and hands, and these problems got progressively worse. Dr. Allen suggested that the pain was probably caused by tendinitis, but the defendant elected to again have surgery on both wrists and these surgeries were performed in January and February of 2. Medical Evidence The medical evidence for the purposes of the issues raised in this trial was presented by the deposition of Dr. Vaughan Allen. Dr. Allen, a board-certified neurological surgeon, testified that -2-