Mary Nell McCrary v. Cracker Barrel, Old Country Store, Inc.

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 of findings of fact and conclusions of law. In this case, the trial court found the employee, Mary Nell McCrary, permanently totally disabled. The employer, Cracker Barrel, Old Country Store, Inc. (Cracker Barrel), appeals alleging the trial court based its determination on inaccurate factual findings, unreliable expert testimony and inadmissible evidence. Finding no error, we affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (25) Appeal as of Right; Judgment of the Trial Court Affirmed DONALD P. HARRIS, SR. J., in which GARY R. WADE, J., and J. S. (STEVE) DANIEL, SR. J., joined. John Thomas Feeney, Catherine L. Grant, Nashville, Tennessee, for the Appellant, Cracker Barrel, Old Country Store, Inc. Neal Agee, Lebanon, Tennessee, for the Appellee, Mary Nell McCrary. MEMORANDUM OPINION I. FACTUAL AND PROCEDURAL BACKGROUND The parties to this action for workers' compensation benefits stipulated that Ms. McCrary suffered a compensable injury to her left shoulder on January 2, 1998. She reached maximum medical improvement on November 1, 1998, and was assigned a thirty-four percent (34%) impairment rating to the body as a whole by her treating physician, Dr. Roy Terry. Ms. McCrary was sixty years of age at the time of the trial. On January 2, 1998, while working at the Cracker Barrel Distribution Center as an order puller, she fell over a guard rail, and very painfully landed on her left shoulder. Ms. McCrary is left-handed, so the injury was to her dominant arm. After being examined at a local clinic, she was referred to Dr. Roy Terry, an orthopedic surgeon. After reviewing the results of an MRI, Dr. Terry recommended and performed surgery. Following surgery, the problems with her left arm worsened. She was given pain medication that was eventually replaced by a TENS unit which Ms. McCrary continues to use daily along with Tylenol. Dr. Terry released her on November 1, 1998, but restricted her from using her left arm and shoulder. She attempted to return to Cracker Barrel, but was told that the jobs there required use of both arms. Ms. McCrary testified that she has lost much of the use and strength in her left arm. She finds it difficult or impossible to perform common tasks such as brushing her teeth and hair, dressing herself and bathing. She does none of the housework, cooking, or yard work and has difficulty answering the telephone. Ms. McCrary spends about half her day lying down or reclining, and has not worked since being released by Dr. Terry. She had an automobile accident in March 1999, in which she injured her right shoulder and has also had surgery on that shoulder. Over the objection of Cracker Barrel, Ms. McCrary was allowed to testify that following her release by Dr. Terry, Cracker Barrel continued paying her weekly compensation for several years. According to Ms. McCrary, it was when the workers' compensation insurance carrier for Cracker Barrel indicated that after January 17, 26, she would no longer receive these payments that she filed her lawsuit for workers' compensation benefits. Ms. McCrary completed the eleventh grade at Mt. Juliet High School before getting married and discontinuing her education. She worked for four or five years at McFarland Hospital as a nurse's aide. Thereafter, for a time, she stayed home and took care of her son before going to work for her husband and his father in their business, McCrary and Son Excavating. Her duties there included cleaning the offices, doing light filing, and answering the telephone. When she and Mr. McCrary were divorced, she left that job and began working for Johnson's Retirement Center as a patient assistant and housekeeper. Ms. McCrary held that job for four to six years and then accepted employment from Cracker Barrel where she worked for about four years prior to her injury. Her job at Cracker Barrel involved filling, packing and shipping orders from the various Cracker Barrel stores and required that she use both arms, lifting and reaching. Ms. McCrary testified she could not do any of the jobs she had previously held. She has had no vocational training of any kind and is not good at reading or math. She described herself as being a slow learner in school. Ms. McCrary is able to write with her left hand and can pick up objects that are not heavy. She testified, however, that she was not able to do anything for a long period of time because of the pain in her shoulder and arm. -2- ****** Document Outline ****** * Page_1 * Page_2 * Page_3 * Page_4 * Page_5 * Page_6 * Page_7 * Page_8 * Page_9