Henry Earl Campbell v. Jim Keras Buick Company and

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee. Code Annotated section 5-6-225(e) (3) for hearing and reporting to the Supreme Court of the finding of fact and conclusions of law. The trial court found that the Employee failed to prove causation, failed to give notice as required by Tennessee Code Annotated section 5-6-21, and waived his right to worker's compensation benefits for a back injury. We affirm on the basis that Employee failed to prove causation and failed to prove notice. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE H. WALKER, III, SP.J., in which JUSTICE JANICE M. HOLDER, J., and JAMES L. WEATHERFORD, SR.J., joined. James L. Gordon, Memphis, Tennessee, for the appellant, Henry Earl Campbell B. Duane Willis, Jackson, Tennessee, for the appellee, Jim Keras Buick Company and Great American Insurance Companies MEMORANDUM OPINION FACTUAL BACKGROUND Employee was 47 years of age, and had worked for the Employer for over twenty- five years. He has an eleventh grade education and a history of cleaning and detailing cars that Employer sells. Employee alleges that on June 1, 1998, he was getting in a car when his foot slipped, causing him to fall on his rear end and injure his back. 1 The Employee had a prior back injury in 1976, and a settlement was court- approved in 1977, awarding Employee benefits amounting to twenty percent permanent partial disability to the body as a whole. On May 17, 1978, Employee and Employer entered into a written agreement which acknowledges the prior injury and in which Employee agrees to not lift any heavy object which "could result or cause injury to my back." The agreement stated in part "my back was previously injured and under no condition will I hold Reed Keras Buick responsible for a back injury sustained on the job." Dr. Gary L. Kellett testified that he treated Employee in May 1997 for low back and right leg pain caused by a sneezing and coughing episode about a week before the office visit. The pain radiated down the right leg of Employee. Dr. Kellett recommended conservative treatment with exercises and medication. Dr. Kellett was aware of the prior disc operation and fusion Employee had and felt he was doing well prior to the sneeze. Employee alleges he was injured at work June 1, 1998. Dr. John P. Howser, neurosurgeon, testified that he examined Employee August 28, 1998, for back pain. Employee gave a history that approximately three months before the examination he sneezed and his foot slipped and he had the onset of back pain. His left leg had sharp pains which radiate to the back. Employee reported he had seen Dr. Kellett who gave him pain pills. Dr. Howser was aware of the past history of fusion surgery. Employee told Dr. Howser he had been doing well since the surgery until he sneezed. Examination revealed muscle spasm and restricted range of motion of the lumbar spine. He saw Employee during several visits and treated Employee with lumbar epidural and caudal epidural blocks, hamstring exercises, and facet blocks. Employee did not mention an injury at work during these visits. On December 21, 1998, Employee phoned and related he had an incident at work in May 1998, where he slipped on some chemicals on the floor and fell at work. Employee saw Dr. Howser again January 26, 1999, for an office visit. Dr. John Lindermuth, neurosurgeon, testified that he first saw Employee April 22, 1999. Employee gave a history of injury at work in May 1998. Dr. Lindermuth diagnosed failed back syndrome, based on Employee's previous surgery in 1976 with a good result, and then having re- injured himself. Employee testified at trial that he reported his fall and injury on June 1, 1988 to his supervisor, Steve Markle. Markle testified that Employee did not report a work- related injury on June 1, or any other day. He never filled out any worker's compensation forms, or referred Employee to a doctor. Employee has not returned to work at Employer's place of business, but has worked briefly at two other jobs. 2