Debbie G. Scott v. Federal Express 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._ 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff filed a petition seeking compensation for an ankle injury which occurred July 16, 1997 and for a back injury which occurred on May 11, 2. The trial judge bifurcated the two claims and heard the back injury case. On April 15, 22 the trial court entered a judgment which dismissed the portion of the complaint seeking compensation for the back injury. The plaintiff says the evidence preponderates against this finding. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed JOHN K. BYERS, SR. J., in which WILLIAM M. BARKER, J. and JOSEPH M. TIPTON, SP. J., joined. Selma Cash Paty, Chattanooga, Tennessee, attorney for the appellant, Debbie G. Scott. Kent E. Krause, Nashville, Tennessee, attorney for the appellees, Federal Express Corporation and Sentry Insurance. MEMORANDUM OPINION At the time of the trial, the plaintiff was forty-nine years of age. She began work for the defendant in 1986. Her duties were as a delivery person. This required her to load a truck with packages to be delivered to customers, to drive the truck to the location of customers, to unload packages at designated places and to pick up packages from customers. In July 1998 the plaintiff had a two-level bone fusion at L4-L5 and L5-S1. The need for the surgery was non-work related. In December of 1998 the plaintiff fell at work and experienced some back pain through January 1999, for which she saw a doctor. In July 1999 the plaintiff twisted her ankle and suffered a severe sprain. She was placed in a fracture boot as a result of this. The plaintiff testified that this caused her back and leg to hurt. The plaintiff conceded, however, she had reported to her doctor that she was having increased lower back pain radiating into her hip and down her leg on April 27, 2. Medical Treatment The pertinent medical evidence was given by Dr. Richard G. Pearce, an orthopedic surgeon, who treated the plaintiff for her previous back injury and also treated her in relation to her limb complaints. Dr. Pearce testified the problem the plaintiff now suffers is as a result of degenerative changes at the L3-4 level which is above the vertebra that were fused in the 1998 surgery. He testified it is not unusual for this to occur above a fusion. Further, he testified the incident of May 11 [12] caused the plaintiff's symptoms from this disc level to get worse. Dr. Pearce's testimony as it relates to whether the plaintiff is entitled to recover is better understood by setting out his testimony verbatim. Q. Would you go back, Doctor, now and compare those complaints with the complaints that she had on April 27th of 2? A. They were similar complaints. Q. Virtually identical; aren't they, sir? A. Well, if you read the dictation, it would be very similar, yes, sir. Q. In fact, she told you on that day that she had some increasing lower back pain with some pain radiating into her hip and down into her right leg; correct? A. That's correct. Q. Doctor, is it _ is it your opinion that the incident that she described to you in January 21 relating to you for the first time an injury that she alleges occurred on May 11, 2, and your opinion that that is the cause of her current problems, is that based on her telling you that there was an increase in her symptoms, in other words, an increase in her pain? A. Yes, sir. Q. Do you have any other source, study, history from her that -2-