Transport Services, LLC. v. Donald Allen
Annotate this CaseCourt Description: Pursuant to Tennessee Supreme Court Rule 51, this workers compensation appeal has been referred to the Special Workers Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The employee alleged a compensable injury to his right shoulder and a compensable mental injury. His employer denied that the alleged mental injury was compensable. The trial court found both injuries to be compensable and awarded 50% permanent partial disability to the body as a whole. On appeal, the employer contends that the trial court erred by awarding benefits for the mental injury and by finding that the employee did not have a meaningful return to work. The employee contends that the trial court erred by accepting the impairment rating of the Medical Impairment Rating Registry physician and in the trial court s application of the concurrent injury rule. We conclude that the evidence preponderates against the trial court s finding that the employee sustained a compensable mental injury and modify the judgment accordingly.Authoring Judge: Justice Sharon G. LeeOriginating Judge: Chancellor Thomas R. Frierson, II
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IN THE SUPREME COURT OF TENNESSEE
SPECIAL WORKERS’ COMPENSATION APPEALS PANEL
AT KNOXVILLE
February 22, 2010 Session
TRANSPORT SERVICE, LLC v. DONALD ALLEN
Appeal from the Chancery Court for Hawkins County
No. 16370
Thomas R. Frierson, II, Chancellor
No. E2009-01268-WC-R3-WC - Filed July 26, 2010
Pursuant to Tennessee Supreme Court Rule 51, this workers’ compensation appeal has been
referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of
findings of fact and conclusions of law. The employee alleged a compensable injury to his
right shoulder and a compensable mental injury. His employer denied that the alleged mental
injury was compensable. The trial court found both injuries to be compensable and awarded
50% permanent partial disability to the body as a whole. On appeal, the employer contends
that the trial court erred by awarding benefits for the mental injury and by finding that the
employee did not have a meaningful return to work. The employee contends that the trial
court erred by accepting the impairment rating of the Medical Impairment Rating Registry
physician and in the trial court’s application of the concurrent injury rule. We conclude that
the evidence preponderates against the trial court’s finding that the employee sustained a
compensable mental injury and modify the judgment accordingly.
Tenn. Code Ann. § 50-6-225(e) (2008) Appeal as of Right; Judgment of the Chancery
Court Modified
S HARON G. L EE, J., delivered the opinion of the Court, in which D ONALD P. H ARRIS, S R. J.,
and S HARON B ELL, S P. J., joined.
Meredith B. Weaver, Knoxville, Tennessee, for the appellant Transport Service, LLC.
Anthony A. Seaton and Mary M. Renfroe, Johnson City, Tennessee, for the appellee Donald
Allen.
MEMORANDUM OPINION
Factual and Procedural Background
Donald Allen (“Employee”) worked as a tanker truck driver for Transport Service,
LLC (“Employer”). He was injured on August 30, 2005, in Charleston, South Carolina,
when he fell while disconnecting a hose during a delivery. The injury was reported almost
immediately. He was taken to a local clinic by employees of the customer. The record is
disputed as to whether he drove his truck back to Tennessee or was picked up and returned
home by his family. He was initially referred to Dr. Samuel Breeding, the company
physician. Dr. Breeding conducted a magnetic resonance imaging (“MRI”) scan which
revealed a possible right shoulder injury. Employee was ultimately referred to Dr. John
Holbrook, an orthopaedic physician, for further treatment.
Dr. Holbrook, testifying by deposition, described the arthroscopic surgical repair he
performed on Employee’s right shoulder on February 1, 2006. The procedure consisted of
a debridement, or shaving, of a frayed area of Employee’s biceps tendon and an
acromioplasty, which involved “remov[ing] a spur on the point of the shoulder to minimize
the rotator cuff from rubbing or impinging on that spur.” Dr. Holbrook subsequently ordered
physical therapy and then permitted Employee to return to work on a light-duty basis. On
July 11, 2006, he determined that Employee was at maximum medical improvement. He
assigned an anatomical impairment rating of 8% to the right upper extremity.1 He placed a
permanent restriction upon Employee to “minimize overhead pushing and pulling with his
right shoulder.” He thought that Employee was capable of driving a truck. On cross
examination, he agreed that “it would be reasonable” to advise Employee to avoid climbing
ladders. This restriction was significant because one of the requirements of Employee’s job
was to climb to the top of the tanks which he transported in order to make sure that they were
properly sealed.
When Dr. Holbrook allowed Employee to work on a light duty basis, Employer
accommodated that restriction. Initially, Employee was placed in a position shredding
outdated records. This task lasted for a period of weeks. Employee testified that one or more
of his fellow drivers “harassed” him during this assignment by throwing gloves at him and
telling him to be careful to avoid paper cuts. After the shredding project was completed, he
was assigned to make an inventory of couplings used to attach hoses from transport tanks to
customers’ holding tanks. Employee testified that during this period, his fellow drivers
harassed him by hiding rubber and wooden snakes in areas where he would find them. He
1
This is equivalent to 5% to the body as a whole under the 5th edition of the American Medical
Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”).
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testified that he had a fear of snakes and that these incidents caused him to have great anxiety
and, eventually, depression.
When Dr. Holbrook released Employee to return to work, Employer sent him to back
to Dr. Breeding, to re-certify that he was eligible to drive a tractor-trailer under U.S.
Department of Transportation standards. At that time, Employee was taking several antianxiety and anti-depression medications. Dr. Breeding deferred approving a return to work
until he received additional information concerning the medications that Employee was
taking. Although Dr. Breeding was deposed, he was not asked if he received that
information. Because Employee was not certified as eligible to drive, his employment was
terminated.
At the request of Employee’s attorney, Dr. William Kennedy, an orthopaedic surgeon,
conducted an independent medical evaluation (“IME”). He opined that Employee retained
a total anatomical impairment of 9% to the body as a whole due to his shoulder injury. Of
this impairment, 6% was due to loss of range of motion, and the remaining 3% was related
to the acromioplasty performed by Dr. Holbrook. Dr. Kennedy also recommended numerous
activity limitations, including:
avoiding “rapid repeated motions or jerking or hammering with his
right hand. [No] maximum reaching with his right hand. [No] work
with his right hand elevated above the level of his shoulder. [No]
climb[ing] ladders or work[ing] at heights . . . Lifting and carrying or
pushing and pulling should not exceed 20 pounds occasionally or 10
pounds frequently. . . .”
Dr. Thomas Koenig, also an orthopaedic surgeon, was selected to conduct an IME
through the Medical Impairment Rating (“MIR”) registry, pursuant to Tennessee Code
Annotated section 50-6-204(d)(5). He opined that Employee retained a 6% anatomical
impairment to the body as a whole as a result of the shoulder injury. In his deposition, he
explained that he disagreed with Dr. Kennedy’s assignment of additional impairment due to
the acromioplasty because the purpose of that procedure was to restore the anatomy of the
shoulder to its normal state and thus, the AMA Guides award no impairment for that
procedure. Dr. Koenig suggested activity restrictions similar to those of Dr. Kennedy.
Dr. Norman Hankins, a vocational evaluator, testified on behalf of Employee. He
administered an intelligent quotient (“IQ”) test which found Employee to be in the mildly
retarded range. Dr. Hankins expressed concern that this result was inconsistent with
Employee’s work history, which suggested an ability to function at a ninth-grade level. He
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ultimately concluded that Employee had a 71% vocational disability based upon the
restrictions assigned by Drs. Kennedy and Koenig.
Dr. William Diebold, a psychiatrist, conducted an IME at the request of Employee’s
attorney on April 25, 2007. His examination consisted of an interview of Employee, which
lasted approximately one and one-half hours. His diagnosis of Employee was “major
depression, single and severe, with psychotic features.” He also found that Employee had
“features consistent with post-traumatic stress disorder” but did not meet all of the criteria
for that diagnosis. He opined that Employee had a Class IV psychiatric impairment
according to the AMA Guides. The Guides describe this as a “Marked Impairment,” which
would “significantly impede useful functioning.” Dr. Diebold testified concerning causation
as follows:
A: From the visit I had with him and the history I took from him, as
best that I could tell the depression was generated subsequent to the fall
that he had [on the job.] I feel that he had become injured to a point that
limited what he could do, how well he could function, and from that he
became very depressed. So it was kind of a cause and effect thing. So
in my mind if, in other words, if his pain and injury were all of [a]
sudden miraculously healed I would argue he probably wouldn’t be
depressed any more.
Q: All right. So is it your opinion that his depression was caused from
his work accident and the effects thereafter?
A: Yes.
Dr. Diebold also testified that Employee “felt that [Employer] had treated him badly”
because of his physical limitations during the time he was on light duty. He also briefly
mentioned the alleged harassment by Employee’s co-workers but did not express any clear
opinion concerning the relationship of those events to Employee’s mental condition.
Dr. Diebold’s report stated, inter alia, that prior to the injury, “[Employee] used to be
really a very happy person and had never needed treatment for any psychological problems.”
On cross examination, Dr. Diebold admitted that he had not reviewed any records of medical
or psychological treatment that Employee had received prior to the August 2005 injury. He
was unaware that Employee had been under the treatment of a psychiatrist from 1992 through
1998 for major depression and anxiety and had been totally disabled for three years as a
result of those problems. He also did not know that Employee had been regularly taking
Xanax, an anti-anxiety medication, for at least ten years prior to the injury. Employee also
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represented to Dr. Diebold that his childhood was “okay” and did not disclose that his mother
had been murdered when he was approximately seven years old, his father had died shortly
thereafter, and he had been raised in foster care.
Dr. Diebold conceded that Employee had either lied or answered questions
inappropriately concerning the matters listed above. However, he opined that neither the
additional information nor Employee’s misrepresentations or omissions changed his opinions
concerning diagnosis, causation, or impairment.
Dr. Margaret Robbins, also a psychiatrist, conducted an IME at the request of
Employer’s attorney on May 31, 2008. She was assisted by Dr. Thomas Schacht, a
psychologist. Testifying by deposition, Dr. Robbins said she reviewed Employee’s medical
records from before and after the work injury and interviewed Employee. As part of the
evaluation, Dr. Schacht also administered psychological tests. Based upon that information,
Dr. Robbins opined that Employee was malingering, that he had pre-existing anxiety and
depression which were not affected by the work injury, that many of his anxiety-related
problems were the result of his consumption of extremely large amounts of caffeine, and that
he was very angry at Employer over the circumstances of his termination.
Dr. Robbins explained that, based upon Employee’s performance on an achievement
test given early in the evaluation, the decision was made to administer the Test of Memory
Malingering (“TOMM”). According to Dr. Robbins, this test is designed so that a subject
answering the questions randomly would be expected to give correct responses to roughly
50% of the questions. Employee correctly answered forty of the one-hundred-fifty questions,
approximately 27%. Dr. Robbins opined that this result could only be achieved by a subject
who deliberately selected answers he knew to be incorrect. She added that Dr. Schact had
calculated the probability of Employee’s score occurring at random as less than one in one
million.
Dr. Robbins also testified that Employee suffered from chronic anxiety prior to the
August 2005 injury. This finding was reflected in the records of Dr. Moffett, the psychiatrist
who treated Employee from 1992 to 1998. In addition, she noted that Employee had, on
more than one occasion, sought emergency room treatment for chest pains, which he
perceived to be heart attacks. However, on each occasion a full battery of cardiac tests gave
normal results. Dr. Robbins testified that this pattern was consistent with anxiety and/or
panic attacks. She also noted records which indicated that Employee had seen a nurse
practitioner with complaints of anxiety in 2003 and 2004, and as well as pharmacy records
which indicated he had been taking anxiety medication continuously since 2000 and antidepressant medication for two or more years prior to August 2005.
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Employee told Dr. Robbins that he drank ten or more cups of coffee per day. His wife
told her that he drank two or more pots (ten to twelve cups each) of coffee per day. Dr.
Robbins opined that this was an extremely large amount of caffeine, and many of Employee’s
symptoms of anxiety and his sleep difficulties were likely related to that. She pointed out
that prior medical records documented that Employee had been advised to reduce his caffeine
intake.
Employee was forty-three years old when the trial occurred. He had completed the
eleventh grade and received no additional education. He had been primarily an over-the-road
truck driver for approximately seventeen years. He had also been an operations manager at
a concrete plant and a supervisor at a John Deere repair facility. He had supervised ten
employees in one of those positions and thirty employees at the other. He had not worked,
or sought work, since being terminated by Employer.
He admitted that he had received psychiatric care from Dr. Moffett for six years, and
that he had been unable to work for three of those years. He testified that he had “done just
fine” after he returned to work in 1998. He denied having any psychiatric or psychological
treatment after that time, other than taking Xanax, which he had been taking “most of my
life.” During cross-examination, he agreed that he had also been taking nortriptyline, an antidepressant, prior to his work injury. He described the incident or incidents when other
drivers had teased him about getting paper cuts. He did not state how many times this
occurred. He also testified that two or three times he found rubber snakes while working in
the warehouse area. He testified that he complained about these events to Jeff French, his
supervisor. Testifying on rebuttal, French denied that any such conversations occurred.
Employee testified that he had nightmares about snakes and also had difficulty
sleeping due to anxiety. On cross examination, he confirmed that he drank ten to twelve cups
of coffee per day but denied that this had interfered with his ability to sleep before August
2005. He stated that he rarely left his house. He did not believe he was capable of climbing
a ladder, due to his shoulder problems.
In a written memorandum, the trial court found that Employee had sustained
compensable injury to his shoulder and a compensable mental injury. The injuries were
found to be concurrent, in accordance with Tennessee Code Annotated section 50-6207(3)(C). The trial court determined that Employee had an anatomical impairment of 8%
to the body as a whole from the shoulder injury. It found that he had sustained 35%
permanent partial disability (“PPD”) due to the shoulder injury and 50% PPD due to the
psychiatric injury. Referring to section 207(3)(C), the trial court awarded a 50% PPD, the
longer of the two periods of disability.
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Employer filed a motion to alter or amend, contending that the trial court had erred
by not adopting the impairment rating of the MIR physician, Dr. Koenig, for the shoulder
injury. Employee filed a cross motion asserting that he was entitled to a larger award based
upon the concurrent injury rule. After hearing the motions, the trial court revised its earlier
order, finding that the MIR impairment rating should have been used and that Employee had
24% PPD due to the shoulder injury. It also revised its conclusions concerning the method
of application of the concurrent injury rule and determined that Employee had sustained a
50% PPD as a result of his combined injuries.
Employer appealed, contending that the trial court erred by finding that Employee’s
alleged mental injury was compensable, by finding that Employee’s proof of a mental injury
was sufficient, and by finding that Employee did not have a meaningful return to
work.2 Employee asserts that the trial court erred by accepting the MIR physician’s
impairment and by incorrectly applying the concurrent injury rule.
Standard of Review
The standard of review of issues of fact is de novo upon the record of the trial court,
accompanied by a presumption of correctness of the findings, unless the preponderance of
evidence is otherwise. Tenn. Code Ann. § 50-6-225(e)(2) (2008). When credibility and
weight of testimony are involved, considerable deference is given the trial court when the
trial judge had the opportunity to observe the witness’ demeanor and to hear in-court
testimony. See Madden v. Holland Group of Tenn., Inc., 277 S.W.3d 896, 898 (Tenn. 2009)
(citing Tryon v. Saturn Corp., 254 S.W.3d 321, 327 (Tenn. 2008)). When the issues involve
expert medical testimony contained in the record by deposition, determination of the weight
and credibility of the evidence necessarily must be drawn from the contents of the
depositions, and the reviewing court may draw its own conclusions with regard to those
issues. Foreman v. Automatic Sys., 272 S.W.3d 560, 571 (Tenn. 2008) (citing Orick v.
Bestway Trucking, Inc., 184 S.W.3d 211, 216 (Tenn. 2006)). A trial court’s conclusions of
law are reviewed de novo upon the record with no presumption of correctness. Seiber v.
Reeves Logging, 284 S.W.3d 294, 298 (Tenn. 2009) (citing Goodman v. HBD Indus., Inc.,
208 S.W.3d 373, 376 (Tenn. 2006); Layman v. Vanguard Contractors, Inc., 183 S.W.3d 310,
314 (Tenn. 2006)).
2
Employer also argued in its brief that the trial court erred by awarding benefits in a lump sum. It
abandoned that contention at oral argument, because all due benefits had accrued by that time.
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Analysis
Compensable Mental Injury
Employer asserts that the trial court erred by finding that Employee had sustained a
compensable mental injury. Tennessee law permits recovery for a mental injury in two
circumstances: when it is “caused by either (1) a compensable physical injury, or (2) a sudden
or unusual mental stimulus, such as a fright, shock, or even excessive, unexpected anxiety.”
Cutler-Hammer v. Crabtree, 54 S.W.3d 748, 754 (Tenn. 2001). The trial court did not make
a specific finding as to which type of causation applied in this case. Employer argues that
the evidence preponderates against a finding that Employee sustained his burden of proof
under either theory.
Dr. Diebold’s testimony, set out above, is based on the premise that Employee’s
depression and anxiety were caused by the ongoing pain from his shoulder injury. Employer
argues that his opinion is inconsistent with the medical records concerning treatment of the
shoulder injury (which Dr. Diebold did not examine), which do not suggest that Employee
had intractable or disruptive pain after his shoulder surgery. To the contrary, those records
reflect gradual improvement, with occasional complaints of pain, which were treated with
over-the-counter products such as naproxen. Moreover, Employer also asserts that Dr.
Diebold’s opinion is at odds with Employee’s testimony at trial, in which he focused on the
alleged harassment by his co-workers as the source of his anxiety.
Employee testified that no particular incident of alleged harassment triggered his
alleged depression and anxiety but that his condition gradually worsened as the events
continued. Employer submits that, taken at face value, this testimony establishes that the
alleged mental injuries were not compensable because they were not caused by the physical
injury nor by a sudden or unusual stimulus.
Employer further asserts that Dr. Diebold’s testimony is of limited value because he
relied completely upon Employee’s self-description of his condition before and after the
work injury. Consequently, he lacked knowledge of any of Employee’s prior psychiatric
problems or treatment. Employer compares Dr. Diebold’s limited knowledge of Employee’s
medical and psychiatric history with that of Dr. Robbins, who reported that she reviewed
over eight hundred pages of medical records concerning Employee in preparation of her
evaluation.
The medical proof on this issue was presented by deposition. Thus, we are able to
reach our own conclusions concerning the relative weight to be given to the testimony of Drs.
Diebold and Robbins. See Foreman, 272 S.W.3d at 571. In doing so, we consider, among
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other things, the qualifications of the experts, the circumstances of their examination, the
information available to them, and the evaluation of the importance of that information by
other experts. Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn. 1991); Woods
v. Modine Mfg., Co., No. 03S01-9810-CV-00110, 1999 WL 421147 at *2-3 (Tenn. Workers
Comp. Panel June 23, 1999). In that context, both doctors appear to be well-qualified
psychiatrists. Dr. Robbins’s examination of Employee included an interview and the
administration of various psychological tests, while Dr. Diebold’s examination consisted
solely of an interview. As part of her evaluation, Dr. Robbins also reviewed many medical
records from the period of time prior to Employee’s work injury, including the records of his
prior psychiatric treatment. Dr. Diebold reviewed no prior medical records, and was
apparently unaware, until he was cross examined on the subject, that Employee had
undergone six years of psychiatric care prior to his work injury for the same conditions which
Dr. Diebold attributed to that injury. We are compelled to conclude that Dr. Robbins’s
opinions were based upon more extensive and more reliable information than Dr.
Diebold’s. In addition, Dr. Diebold’s expressed lack of concern regarding both Employee’s
previous history of psychiatric treatment and Employee’s failure to disclose that history to
him casts some doubt upon his judgment. We, therefore, find that Dr. Robbins’s opinion is
entitled to greater weight than that of Dr. Diebold. For that reason, we conclude that the
evidence preponderates against the trial court’s finding that Employee sustained a
compensable mental injury.
Meaningful Return to Work
The trial court found that Employee did not have a meaningful return to work and that
his award of benefits was, therefore, not capped at one and one-half times the anatomical
impairment by operation of Tennessee Code Annotated section 50-6-241(d)(1)(A). Employer
argues this finding was erroneous. The premise of the argument is that the restrictions placed
upon Employee by the treating physician, Dr. Holbrook, would not have prevented him from
returning to work. There is, however, no dispute that Dr. Holbrook never re-certified
Employee’s ability to drive a tractor-trailer nor that the restrictions suggested by Drs.
Kennedy and Koenig precluded Employee from driving a tanker truck. Moreover, during his
deposition, Dr. Holbrook expressed reservations about Employee’s ability to climb a ladder
to inspect the top of the tanks which he transported, an essential function of his job.
Considering the medical testimony as a whole, we are unable to find that the evidence
preponderates against the trial court’s finding that Employee did not have a meaningful
return to work.
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Impairment Rating
Employee argues that the trial court erred in amending its ruling to adopt the
impairment rating of Dr. Koenig, the MIR doctor. Tennessee Code Annotated section 50-6204(d)(5) provides that the rating of the MIR doctor is presumed to be accurate unless
rebutted by clear and convincing evidence. The primary difference between Dr. Koenig’s
rating and Dr. Kennedy’s concerned the acromioplasty procedure performed by Dr.
Holbrook. Dr. Koenig testified that the AMA Guides do not provide an impairment for that
procedure because its purpose is to return the anatomy to its normal configuration. Dr.
Kennedy agreed with Dr. Koenig on those points but opined that, according to his
interpretation of Dr. Holbrook’s report, it was appropriate to add additional impairment in
this case because of the amount of bony material removed during the procedure.
In Beeler v. Lennox Hearth Products, Inc., No. W2007-02441-SC-WCM-WC, 2009
WL 396121 (Tenn. Workers Comp. Panel Feb. 18, 2009), a prior panel held that “clear and
convincing evidence,” for purposes of Tennessee Code Annotated section 50-6-204(d),
meant “evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.” Beeler, 2009 WL 39612 at *4 (quoting Hodges v.
S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)). Inasmuch as the Guides do not
provide an impairment for this procedure, Dr. Kennedy’s testimony concerning his
interpretation of Dr. Holbrook’s operative report is not sufficient to raise a “serious or
substantial doubt” regarding Dr. Koenig’s opinion. The trial court correctly adopted Dr.
Koenig’s impairment rating in determining the extent of Employee’s permanent disability.
Concurrent Injury Rule
Initially, the trial court incorrectly applied the concurrent injury rule by awarding only
the amount of the larger of the two disabilities which it found to result from Employee’s
injury. Both injuries should be taken into account, but a single award, apportioned to the
larger member (the whole body in this case), should be made. See Crump v. B & P Constr.
Co., 703 S.W.2d 140, 143-44 (Tenn. 1986). The trial court addressed this issue and correctly
applied the rule in its order on the parties’ motions to alter or amend.
Conclusion
The finding that Employee sustained a compensable mental injury is reversed. The
judgment is modified to award 24% permanent partial disability to the body as a whole for
Employee’s shoulder injury. The judgment is affirmed in all other respects. Costs are taxed
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one-half to the appellant Transport Service, LLC and its surety and one-half to Donald Allen,
for which execution may issue if necessary.
_________________________________
SHARON G. LEE, JUSTICE
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