Janine Merryman v. Aqua Glass Corporation

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _5-6-285 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the defendant employer Aqua Glass Corporation contends the evidence preponderates against the trial court's finding of a compensable back injury and an award of twenty- six percent (26%) permanent partial disability to the body as a whole. For the reasons stated in this opinion, we affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed W. MICHAEL MALOAN, SP. J., in which JANICE M. HOLDER, J. and JOE C. LOSER, JR., SP. J., joined. Steven S. Maroney, Amber A. Edwards, Jackson, Tennessee, for appellant, Aqua Glass Corporation Scott G. Kirk, Jackson, Tennessee, for the appellee, Janine Merryman MEMORANDUM OPINION The plaintiff, Janine Merryman (Merryman) was forty-six (46) years old at trial. She graduated from high school and earned a Bachelor's Degree in Religious Arts and Theology. She has a commercial truck driver's license and a certificate for training in computer pattern making. Her prior work experience includes a waitress, waitress trainer, receptionist, dental surgical assistant, cashier, and pattern maker. Merryman began working for Aqua Glass in the production department as a roller and later as a sprayer. She testified she fell at work on November 18, 1996, and hurt her low back, left hip and knee. She felt a pop in her lower back and had a hot pain shoot down her left leg. After giving notice of the accident, she continued to work that day and did not miss any work thereafter. Merryman continued to have pain in her hip and leg and requested to see a doctor. She was referred to Dr. Micky Smith in Savannah, who referred her to Dr. Keith Nord in Jackson. Dr. Nord saw her on March 17, 1997 and took a history of an accident at work but no fall and complaints of hip and knee pain. His physical examination of her back and left leg did not disclose a ruptured disc or lateral meniscus tear in her knee. Dr. Nord diagnosed left hip greater trochanteriz bursitis and released her to work with no restrictions on March 31, 1997. Dr. Nord was of the opinion she had reached maximum medical improvement on February 4, 1998, and assigned no impairment to her back and a five percent (5%) permanent impairment to her left lower extremity. Prior to February 4, 1998, Dr. Nord testified Merryman did not complain of back pain. Merryman continued to see Dr. Nord for hip and knee pain. On her last visit of October 14, 1998, Dr. Nord's office notes state Merryman complained of back pain which Dr. Nord diagnosed as a lumbosacral strain. Merryman testified she told Dr. Nord of her back pain throughout her treatment. Merryman saw Dr. Claiborne Christian on September 29, 1999, for a second opinion. Dr. Christian took a history of a slip and fall at work with injuries to the low back and left extremity and complaints of continued back pain. An MRI did not reveal any abnormalities in her lumbar spine but an X-ray showed early degenerative changes at the L5-S1 level. On her last visit of December 16, 1999, Dr. Christian agreed with Dr. Nord and assigned five percent (5%) impairment for her knee injury and no impairment for her back. Dr.Christian did not find any evidence of spondylolisthesis in Merryman's back. When asked about Dr. Boals' finding of spondylolisthesis, Dr. Christian stated "It is just not consistent with my understanding of her injury which was a slip and fall at work and not a fall off a building or a high speed car accident." Dr. Joseph Boals evaluated Merryman on January 17, 21. Dr. Boals agreed Merryman had a five percent (5%) impairment to her left leg, but was of the opinion the fall at work had aggravated a pre-existing congenital spondylolisthesis at the L5-S1 level in her lower back and assigned a twenty-three percent (23%) permanent impairment to the body as a whole. Dr. Boals states in his notes: "For some reason, it seems the physicians missed this diagnosis (spondylolisthesis)." Dr. Boals assigned permanent restrictions of no prolonged walking, standing, stooping, climbing, repetitive bending or twisting of her back and stated he did not think Merryman could work as an over the road truck driver. Merryman testified she did not have any back problems prior to her fall at work in November 1996, but now has persistent pain in her low back, left hip and knee. She takes prescription pain medication as needed and she would be able to do her previous employment but with difficulty. Merryman left Aqua Glass in October 2 and began in May 21 working with her husband as an over the road truck driver with "one hundred percent (1%) no touch freight." She testified she can no longer ride her motorcycle, bowl, play tennis, or pick up her grandson. -2-