Larry White v. Federated Mutual Insurance 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 trial court found the plaintiff had suffered a 16 percent loss of his left arm and 28 percent loss to his right arm and entered judgment accordingly. The trial court further ordered the defendant to hold the plaintiff harmless for any subrogation claims against him for recovery of medical bills paid by an insurance company under a policy for health care owned by the plaintiff. The defendant says the evidence does not support a finding the plaintiff was injured in the course and scope of his employment with the defendant; the court erred in not finding the last injurious rule should apply; there is no showing the plaintiff suffered any vocational disability to his arms, and that the trial court erred by finding the defendant should hold the plaintiff harmless for any subrogation claims of a health insurance policy for payment made on behalf of the plaintiff for treatment of the carpal tunnel syndrome. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed JOHN K. BYERS, SR. J., in which FRANK F. DROWOTA, III, C.J., and JOE C. LOSER, SP. J., joined. Gordon C. Aulgur and David Brett Burrow, Nashville, Tennessee, attorneys for the appellant, Federated Mutual Insurance Company. Tracy White Moore, Columbia Tennessee, attorney for the appellee, Larry White. MEMORANDUM OPINION Plaintiff (employee) was forty-nine years of age at the time of trial. He has a twelfth grade education and completed a three-year apprenticeship as an iron worker. Upon completing this apprenticeship, he received a card certifying him as a journeyman iron worker, which entitled him to perform all aspects of the trade including welding, structural steel, concrete work, fundamental iron, and all aspects of building metal buildings and concrete buildings. The plaintiff testified that at the time of the injury that is the cause of this action, he earned his income as a member of a trade union. At the local union hall, there was a listing of jobs he could perform if qualified and he would go out and perform the work. When he was finished with the job or laid off, he would return to the union hall for more work. This is how he came to work for Tomlin Construction Company, the company insured by the defendant. The plaintiff began working for Tomlin on March 24, 1999. He testified that while working for Tomlin between April 19, 1999, and April 26, 1999, he noticed for the first time that his hands were "going to sleep" and becoming numb and his arms began to hurt. He testified that his hands and arms had never bothered him in this manner before April 19, 1999. On May 6, 1999, while seeing his physician for unrelated treatment to his back, the plaintiff told this doctor, Dr. Darrell Rheinhart, about the problems with his hands. Dr. Rheinhart sent the plaintiff for an EMG (nerve conduction study) which was conducted on May 1, 1999. After the EMG, the plaintiff reported his injury to his supervisor at Tomlin and completed a First Report of Injury. After May 1, the plaintiff did not perform any work with his hands (such as welding or tying rebar,) for Tomlin. The remainder of his work for Tomlin involved light duty work that did not involve his hands. The last day the plaintiff worked for Tomlin was July 3, 1999. After leaving Tomlin, the plaintiff continued to work full-time performing welding work for other companies through his trade union. The plaintiff continued seeing physicians about his hand problems as he continued to work as an iron worker. He testified that during this time, his hand condition got no worse but got no better. At the recommendation of these physicians, the plaintiff had carpal tunnel release surgery performed on his right hand on November 9, 1999, and on his left hand on December 11, 1999, by a Dr. Schmidt in Nashville. The plaintiff testified that these surgeries relieved the numbness and tingling in his hands, but that he lost much of his hand strength as a result of the surgeries. He testified that he believed that thirty to forty percent of jobs that formerly would have been available to him are now not available to him due to the loss of strength in his hands. The work the plaintiff did at Tomlin required extensive use of his hands especially the bending and tying of rebar. Rebar is a rod used to strengthen concrete walls. To tie rebar, the worker must use a large pair of pliers to twist wire onto the bar and to bend or shape the bar. The plaintiff was doing this work for Tomlin from four to six hours a day. In addition to this, the plaintiff used an -2-