Darcus Williams v. Metropolitan Government of

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel 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 employer appeals the trial court's judgment that the employee suffered an injury arising out of and in the course and scope of her employment when the employee left her work station to go to a break area on the employer's premises to hand some money to her friend to repair her car and slipped in a puddle of water and injured her back as she was about to re-enter the building. The employee contends that the trial court erred in finding the employee suffered only a 2% anatomical impairment and a 4% vocational disability for this injury. The panel has concluded that the judgment of the trial court should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed JAMES L. WEATHERFORD, SR. J., in which JANICE M. HOLDER, J., and JOE C. LOSER, SP.J., joined. Aundreas Wattley-Smith, Nashville, Tennessee, for the appellant Metropolitan Government of Nashville and Davidson County, Tennessee Acting By and Through The Electric Power Board Through Said Government a/k/a Nashville Electric Service. Jerry D. Mayo, Nashville, Tennessee, for the appellee Darcus Williams. MEMORANDUM OPINION Ms. Darcus Williams was 42 years old at the time of trial. She is a single mother with two children ages 25 and 11. She graduated from high school and has taken college courses. She had worked as a file clerk for a bank and a university before she began working for Nashville Electric Service ("NES") in July 1987 as a clerk typist. She had also worked for 5 years at the Hyatt Regency as a reservations agent and catering coordinator. Ms. Williams also worked a second part-time job during holidays and other times during her employment with NES. The main NES building has a back entrance with a concrete porch and a chain link fence beside it. There is a picnic table in this area and employees take breaks there and use this area to smoke. It is also a poplar area for employees to be dropped off and picked up from work. Employees use this entrance to go to other buildings on the NES property. According to Ms. Williams, it is common practice for employees to stand on the porch and receive items such as lunch, papers, money or clothes from friends or family members who are on the outside of the fence. NES security guards or supervisors had never told her that this activity was prohibited. Mr. Robert Mansolino, NES employee safety and health manager, testified: "I think it's pretty common for employees to go out that back door to carry on business or go to their personal vehicle or whatever." He was not aware of any NES rule prohibiting employee use of this area. On December 28, 2, Ms. Williams had problems with her car and had a friend drop her off at work. During work hours she needed to give some money to her friend to get her car repaired. She arranged to meet him at the chain link fence near the back door of the main NES building so she could hand him the money. At about 1:3 a.m. she left her workstation and went down to deliver the money. After giving the cash to her friend at the fence, she turned and reached for the door to the building when she slipped in a puddle of a slimy, watery substance and fell. Her friend called the security guard and she reported to the nurses' station complaining of low back pain that radiated to her left leg. A January 4, 21, MRI indicated a lumbar disc protrusion. After conservative treatment failed, Dr. Thomas O'Brien, an orthopedic surgeon, performed a 2-level laminectomy and fusion. Her pain and radicular symptoms did not resolve and a second MRI showed scar and granulated tissue surrounding the nerve root. Dr. O'Brien found that she had sustained a 13% anatomical impairment rating.1 He stated that he expected her to "have some ongoing permanent discomfort in her leg as a result of scarring and intrinsic nerve damage present pre-operatively." He imposed permanent restrictions of "no lifting greater that 25 pounds and limited bending and stooping." He felt she could return to her job as a clerk typist. Dr. David Gaw, an orthopedic specialist, performed an independent medical evaluation and assigned a 22% anatomical impairment rating to the body as a whole based on the AMA Guides 5th Edition. He disagreed with Dr. O'Brien's 13% rating because Dr. O'Brien did not utilize the range 1Dr. O'Brien acknowledged that he did not follow the AMA Guides' range of motion protocols because he felt it would not give a valid impairment rating due to M s. W illiams' inconsistent results on her functional capacity evaluation. -2-