Diana J. Neese v. Shoney's Inc.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this case, the trial court found that the employee had sustained a 75% vocational disability to each extremityfor bilateral carpal tunnel syndrome caused by her work activity. The employer argues that this award is excessive and preponderates against the evidence. For the reasons set out in this opinion, We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed JAMES L. WEATHERFORD, SR.J., in which FRANK F. DROWOTA, III, C.J., and JOE C. LOSER, JR., SP.J., joined. Mark A. Baugh, Nashville, Tennessee, for the appellant, Shoney's Inc. Kelly R. Williams, Livingston, Tennessee, for the appellee, Diana J. Neese. MEMORANDUM OPINION Ms. Diana Neese was 51 years old at the time of trial. She has a ninth grade education, but later earned her GED in 1984. She lives in rural Tennessee near the border of Clay County and Overton County, although she has a Hilham, Tennessee street address. She has worked primarily as a cook for retirement centers and a public school system since she started working in 196. She has worked as a backline cook for several fast food restaurants. She has also worked as a cashier, an assembly line worker, and child care worker. In August of 1999, Ms. Neese began working at Shoney's in Cookeville as a salad bar attendant. In this job, she was responsible for maintaining the salad bar by carrying out trays of food, big pots of soup, bowls, and plates. In February of 2, Ms. Neese started experiencing problems with her hands: "My hands and arms were hurting, going numb and tingling, and I kept dropping things." She stated she had never had any problems with her hands or wrists prior to February of 2. On March 22, 2, she saw her primary care physician, Dr. Mauricio, complaining of numbness in her arms, which started at her elbow. Dr. Mauricio, then referred her to Dr. Robert Nelson. On April 17, 2, Dr. Nelson diagnosed Ms. Neese with bilateral carpal tunnel syndrome. On April 28, 2, Ms. Neese informed Mr. Jimmy Price, manager at Shoney's, that she had carpal tunnel syndrome. Dr. Nelson performed surgery on her right wrist on May 31, 2 and operated on her left wrist on June 3, 2. On November 7, 2, Ms. Janet K. Patterson, physical therapist administered Ms. Neese's functional capacity evaluation. Ms. Patterson indicated that Ms. Neese would not use her fingers for fine motor tasks, would take frequent rests and would not use her arms for reaching more than 3 seconds at a time during the test. According to Ms. Patterson, test results indicated 1) inconsistent or sub-maximal effort on grip strength and push tests; and 2) that her heart rate did not correlate with reported levels of pain. On November 16, 2, Dr. Nelson released Ms. Neese to return to work light- duty and assigned restrictions of no lifting over 1 to 12 pounds and no repetitive lifting of 5 to 7 pounds on a regular basis, and no repetitive motions with her hands. Ms. Neese returned to Dr. Nelson on January 2, 2, still complaining of some pain in her hands with weakness and numbness. Dr. Nelson found she had reached maximum medical improvement and assigned the same restrictions on a permanent basis. Dr. Nelson found that Ms. Neese has sustained a 3% permanent partial impairment to each hand. Dr. Nelson indicated there are different factors that relate to the level of pain you can expect from patients after a bilateral carpal tunnel release. He listed one factor as what the surgeon finds at the time of surgery----"[F]or instance, in her case where I described that the median nerve as it was coming underneath that ligament, it was really adherent or adhered to the ligament, ... I had to do what is called a neurolysis, which means that you have to take a nerve once you kind of separate it off the ligament and actually try to release pressure on the individual fibers of the nerve. In her case that was necessary. Sometimes that is not necessary. So, all of that has to do with the prognosis of what you expect the future to be for that particular patient." As to Ms. Neese's prognosis, Dr. Nelson stated ".... essentially on both sides [of] the median nerve I found that she had quite a bit of compression on the nerve. So, from that standpoint, I felt that she may not recover as much as some do that have that type of surgery. So, I was a little bit -2-