Monica D. Perry v. Gap, Inc.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated section 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The treating specialist found the Employee not to be impaired due to a pinched nerve in her neck, which was resolving. An independent medical examiner [IME] testified that she retained an 8 percent permanent partial disability impairment. The trial judge accepted the opinion of the IME and awarded the Plaintiff 2 percent permanent partial disability. We do not find that the evidence preponderates against the holding of the trial court. Accordingly, the judgment of the trial court is affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed WILLIAM H. INMAN, SR. J., in which CORNELIA A. CLARK, J., joined and ROBERT E. CORLEW III, SP. J., filed a dissenting opinion. Richard C. Mangelsdorf, Jr. and Stephen B. Morton, Nashville, Tennessee, attorneys for Appellant, Gap Inc. William Joseph Butler and E. Guy Holliman, Lafayette, Tennessee, attorneys for Appellee, Monica Perry. MEMORANDUM OPINION The Employee alleged that in February 23 she suffered an injury to her neck and left shoulder, and in July and August 23 she suffered a gradual injury to her left and right hands, wrists and to both arms. She specifically alleged temporary total disability,1 and permanent partial disability, for which she sought workers' compensation benefits. The complaint was answered in course. The Employer disclaimed knowledge of gradually occurring injuries and "demanded strict proof of the Plaintiff's claimed entitlement to benefits" while admitting the occurrence of the February 26, 23 accident. Trial was held August 31, 24. The earlier filed depositions of doctors Thomas Tompkins and Walter Wheelhouse were considered by the trial judge, who, following a brief recess, filed a 24- page memorandum opinion emphasizing the testimony of the Employee and awarding her benefits for 2 percent vocational disability. The Employer appeals, asserting that: (1) the trial court erred in denying the Employer's motion to compel an independent medical exam of the Employee pursuant to Tennessee Code Annotated section 5-6-24(d)(1) and Rule 35.1 of the Tennessee Rules of Civil Procedure; (2) the evidence preponderates against the degree of vocational disability found by the trial court; and (3) the Employee is not entitled to a disability award pursuant to Tennessee Code Annotated section 5- 6-25(a) and the policies behind the Workers' Compensation Act. Appellate review is de novo on the record, accompanied by a presumption that the judgment is correct unless the evidence otherwise preponderates. Tenn. R. App. P. 13(c); Tenn. Code Ann. _ 5-6-225(e); Lollar v. Wal-Mart Stores Inc., 767 S.W.2d 143, 149 (Tenn. 1989). Discussion The Employee is twenty-seven years old, and a single mother of three children. She completed the eighth grade, and has no vocational or occupational skills. She was employed by the Employer when she was eighteen years old. In February 23, she testified that she injured her neck and shoulder during the course of her job in "wand and loading," which she described as loading the trailers with boxes of clothing, ranging in weight from 2 pounds to 5 pounds. She felt a sharp pain in her neck which ran through her shoulder. She was seen and treated by Dr. Tompkins on numerous occasions, but contends that no visit or treatment ever exceeded three minutes. She last saw Dr. Tompkins in August 23, but her pain and numbness continued, interfering with her ability to perform simple household tasks. She never complained at work about her condition. She never mentioned to a supervisor that she was hurting, explaining that if she "said anything she would be put out of work." She earns $13.89 per hour, with health insurance benefits. The Employee takes ibuprofen daily, but admitted she never asked her treating physician for 1 The Employee did not sign the complaint, and it was developed at trial that she lost no time from work, thus negating and refuting this portion of her claim. See Tenn. R. Civ. Pro. 11(3). -2-