Emily P. Bowen v. Frito-Lay, Inc.,

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 employee in this case sustained 2 separate work-related injuries and one back injury at home. She is now totally disabled and draws Social Security Disability benefits. The employee argues that the trial court erred: (1) in finding that the employee did not sustain a compensable back injury in the course and scope of her employment in March 1999; and (2) in dismissing her complaint against the Second Injury Fund. Additionally, the employer contends that the trial court erred when it held that the employee's February 1998 back injury that occurred while working for this employer was not barred by the statute of limitations. 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 Chancery Court Affirmed JAMES L. WEATHERFORD, SR.J., in which JANICE M. HOLDER, J., and JOE C. LOSER, JR., SP.J., joined. Gene Hallworth, Columbia, Tennessee, for the appellant, Emily P. Bowen. Edward A. Hadley, Nashville, Tennessee, for the appellees, Frito-Lay, Inc., and RSKCo. Paul G. Summers, Attorney General; E. Blaine Sprouse, Assistant Attorney General; James G. Davis, for the appellee James Farmer, Director of Tennessee Department of Labor and Workforce Development, Workers' Compensation Division, Second Injury Fund. MEMORANDUM OPINION Ms. Emily P. Bowen was 5 years old at the time of trial, has a seventh-grade education, and has no special skills or training. She worked as a packer for Frito-Lay, Inc., from June 3, 198, until May 17, 1999. On February 4, 1998, Ms. Bowen was working on a wrapper line when she picked up a 35 pound roll of cellophane and immediately felt sharp pain in her back. Dr. Gregory Lanford, a neurosurgeon and her long-time treating physician, took her off work and treated her conservatively with medication and physical therapy. A myelogram revealed nerve root impingement and on May 19, 1998, Dr. Lanford performed a lumbar diskectomy and nerve root decompression at L5-S1. Dr. Lanford released her to return to light duty work in July of 1998. In November of 1998, he released Ms. Bowen to return to work full-time at Frito-Lay with a 25 pound lifting restriction. He assigned a 1% additional impairment rating for the February 1998 injury.1 Ms. Bowen continued taking medication. At her January 14, 1999 appointment, Dr. Lanford scheduled a follow-up appointment for April 15, 1999. In March of 1999, Ms. Bowen was on a temporary assignment packing cookies in tins and placing trays of cookie tins weighing approximately 18 pounds on a bakers' rack. She started having lower back and leg pain, right arm and shoulder pain caused by "leaning over the tray and reaching over the belt in that awkward [bent-over] position for so long." She reported this injury to her employer but continued to work. On April 15, 1999, Ms. Bowen went to see Dr. Lanford for her previously scheduled follow- up appointment for the 1998 surgery. His notes indicate that she had a new problem and "had re- injured her back" while lifting cookie trays at work. Dr. Lanford found diminished range of motion but x-rays were "unrevealing." He diagnosed low back strain but stated her main complaint was the shoulder pain and that she did not complain of radicular leg pain at this point. He prescribed physical therapy and scheduled a follow-up appointment for May 2, 1999. The physical therapist prescribed a TENS unit, heat therapy, and a back support for Ms. Bowen to wear while at work. Physical therapy was provided at the plant and Ms. Bowen did not miss any work because of this injury. 1While working for Frito-Lay, Ms. Bowen had a series of injuries for which she underwent 2 lumbar surgeries and 1 cervical spine surgery. In 1997 M s. Bowen and Frito-Lay reached a settlement agreement for these injuries. The settlement agreement does not assign percentages of disability but cites a physician's impairment rating of 1% for the lumbar spine and 15% for the cervical spine. M s. Bowen continued to work for Frito-Lay after the 1997 settlement and none of these earlier injuries is the subject of this litigation. -2-