Ingram Book Co. v. Stacey Fitzgerald

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer, Ingram Book Company, contends the evidence preponderates against the trial court's findings that (1) the employee's injury was one arising out of and in the course of employment, (2) the award is not barred by the last injury rule and (3) the claimant retains a twelve percent vocational disability award. As discussed below, the panel has concluded the judgment should be affirmed. Twenty-eight-year-old Stacey Fitzgerald was hired as an executive secretary by Ingram Book Company in September of 1994. Between late February and mid March, she told her supervisor, Terry Cook, she was experiencing right arm pain and requested an ergonomic keyboard. In early June, 1995, a non-work related back injury caused Ms. Fitzgerald to take a temporary leave of absence. Upon her return to work in late August, she requested a part-time position to aid her recovery. Due to continued pain in her right arm, Ingram Book Company sent Ms. Fitzgerald to the Baptist Occupational Medicine facility on or about October 23, 1995. There, she was treated with anti-inflammatorymedicine, a wrist splint, and an elbow band. In November, 1995, Ms. Fitzgerald missed several days of work due to strep throat, a death in the family, and hospitalization for pneumonia. Ingram Book Company terminated her employment during her hospital stay. Following her termination, Ms. Fitzgerald was referred to Dr. Arthur Cushman, whom she saw twice. He concluded Ms. Fitzgerald had a zero percent anatomical impairment rating and assigned no permanent restrictions. Ingram Book Company then arranged for her to receive treatment from Dr. William Jekot. On January 17, 1996, Dr. Jekot diagnosed Ms. Fitzgerald as having mild cubital tunnel syndrome and tendinitis of the right elbow. During March of 1996, Ms. Fitzgerald obtained employment with the Daily News Journal running a newspaper route. However, she quit three months later claiming her preexisting condition caused problems in executing her duties. On May 21, 1997, Dr. Jekot requested a reevaluation visit with Ms. Fitzgerald to prepare for his deposition. Dr. Jekot diagnosed chronic 2