Building Materials Corp. d/b/a GAF Materials Corp. v. Joyce Austin
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IN THE SUPREME COURT OF TENNESSEE
SPECIAL WORKERS’ COMPENSATION APPEALS PANEL
AT NASHVILLE
November 27, 2006 Session
BUILDING MATERIALS CORPORATION, D/B/A GAF MATERIALS
CORPORATION V. JOYCE AUSTIN AND JOYCE AUSTIN V. BUILDING
MATERIALS CORPORATION, D/B/A GAF MATERIALS
CORPORATION
Direct Appeal from the Chancery Court for Davidson County
No. 02-3885 III, 04-2553 III Ellen Hobbs Lyle, Chancellor
________________________________
No. M2006-00262-WC-R3-CV - Mailed - January 23, 2007
Filed - May 9, 2007
________________________________
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 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and
conclusions of law. On appeal, the employee contends that the trial court erred when it dismissed
the employee’s back injury claim based on her failure to comply with the notice provisions of
Tennessee Code Annotated section 50-6-201. Although dismissing the employee’s claim, the trial
court made an alternative finding that the back injury was work-related and resulted in a 20%
vocational impairment to the body as a whole. The employer appeals this alternative ruling
contending that the trial court erred in finding the injury work-related. We conclude that the trial
court erred in dismissing the employee’s claim based on the notice provisions and affirm the trial
court’s finding that the back injury is work-related and results in a 20% impairment to the body as
a whole. We conclude that the alternative finding is supported by the record. Therefore, we affirm
in part and reverse in part, remanding this case to the trial court for further proceedings consistent
with this opinion.
Tenn. Code Ann. § 50-6-225(e)(3) Appeal as of Right;
Judgment of the Chancery Court Reversed in Part, Affirmed in Part,
and Remanded
J. S. DANIEL, SR., J. delivered the opinion of the court, in which GARY R. WADE, J., and DONALD
P. HARRIS, SR., J.,
Joseph K. Dugham and James W. Tiller, Nashville, Tennessee, for the appellant, Joyce Austin.
James H. Tucker, Jr., Nashville, Tennessee, for the appellee, Building Materials Corporation,
d/b/a GAF Materials Corporation.
OPINION
I. Facts and Procedural History
Two separate workers’ compensations actions were initiated at the trial court and ultimately
consolidated for trial. Ms. Joyce Austin initiated a lawsuit May 23, 2003, in which she alleged two
separate work-related injuries. The first injury, a gradual injury to her lumbar spine, was alleged to
have occurred in the course and scope of her employment in August of 2002. After having surgical
repair of her back, Ms. Austin returned to work and on December 21, 2002, suffered a second workrelated injury when she slipped and fell during the course and scope of her employment, fracturing
her hip. Ms. Austin initiated her lawsuit in the Davidson County Circuit Court seeking
compensation for these two separate injuries. Unknown to Ms. Austin, the employer, Building
Materials Corporation, d/b/a GAF Materials Corporation, (hereafter referred to as GAF), filed a
workers’ compensation lawsuit in the Chancery Court of Davidson County on December 31, 2002,
following Ms. Austin’s hip injury. The employer did not file and/or issue a summons
contemporaneous with the complaint and Ms. Austin was never on notice of this lawsuit until she
had initiated her own suit. Ultimately, the Circuit Court case and the Chancery Court case were
consolidated into one action in the Davidson County Chancery Court in case #02-3885-III. The
parties compromised and settled the hip injury on June 9, 2005, and the gradual back injury was tried
and the judgment of that claim is the subject of this appeal. The trial judge found that Ms. Austin’s
back injury was a gradual injury which was caused by her work. As a result of this work-related
injury, the court was of the opinion that Ms. Austin sustained a 20% partial impairment to the body
as a whole. However, the court found that Ms. Austin had failed to comply with the notice
requirements of Tennessee Code Annotated section 50-6-201 in that she had failed to notify her
employer of her back injury within thirty days of the time she knew or should have known that she
had suffered a work-related injury. Ms. Austin did not notify GAF of this injury until her May 23,
2003 lawsuit. It was the trial court’s finding that Ms. Austin realized as of October of 2002 that her
back injury was work-related and failed to make this report. Ms. Austin appeals the trial court’s
dismissal of her back injury claim and GAF appeals the court’s determination that the gradual back
injury has a causal relationship to Ms. Austin’s work.
At the time of the trial of these proceedings, Ms. Austin was forty-one years of age. Her
birthday is February 17, 1964. Ms. Austin completed the eighth grade and has a GED. She has no
formal vocational training and her work history is limited to jobs consisting of labor intensive
activities. She has held three jobs prior to her employment by GAF. These jobs include working
for three years at Motel 6 starting when she was sixteen years of age. Thereafter, she worked for
eleven years as a waitress with Shoney’s Restaurant and she worked some four years and eleven
months as a production employee with Aladdin Industries. Ms. Austin was employed by GAF in
1999. Her supervisors and co-employees testified that she is a good, hard-working, and honest
employee. Ms. Austin has had no previous workers’ compensation claims.
The record reveals that Ms. Austin’s work at GAF consisted of working on a production line
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manufacturing fiberglass for roofing shingles. Her activities required her to do a great deal of
reaching, twisting, lifting and squatting throughout her work which was carried out while standing
on concrete for twelve hour shifts. Her work shift was from 7:00 p.m. in the evening until 7:00 a.m.
in the morning and she averaged a considerable amount of overtime prior to her injuries. After these
injuries she returned to her employer and currently works for GAF at the same or higher wages than
she enjoyed prior to her work-related injury.
According to Ms. Austin, between March and May of 2001, she experienced back discomfort
while engaged in her job duties and she sought medical care through her personal physician. She
did not relate her back problems to her work activities. Her personal physician, Dr. David McCoy,
conducted an MRI which revealed no herniated disk. He treated Ms. Austin with an epidual steroid
injection which had good results. Her symptoms were relieved and she continued her work without
further episode or intervention. In August of 2002, her symptoms reappeared and quickly intensified
commencing August 19, 2002. After this particular date, the pain increased each day with each shift
of work that she performed. By August 22, 2002, she was having a great deal of pain in her left leg
going down into her left thigh. By Saturday, August 24, during her work shift, the pain had
intensified to such a degree that Ms. Austin was limping as she walked. According to Austin’s
testimony, her supervisor, Mr. Pat Moses, inquired of her as to what she had done to her leg, to
which she replied that she did not know. After her work shift, she continued to have progressively
worse pain during the night such that she asked a fellow employee, a Mr. Daniel Galloway, to take
her next work shift so that she might seek medical attention. On Monday, August 26, she went to
Southern Hills Hospital and was treated by an attending physician who x-rayed her hip and leg and
diagnosed her with a pulled thigh muscle. Medication was prescribed and she went back to work
for her Monday night shift. According to her, she arrived at the plant with the use of a cane, which
was observed by her supervisor. Her supervisor, Mr. Tom Ladd, on this occasion had another
employee, one Michelle Brown, assist Ms. Austin throughout her shift, moving the work product
from place to place as Ms. Austin could not walk or carry the fiberglass material. According to Ms.
Austin, by the Wednesday shift, she was in such pain that she was crying and unable to bear the pain
in the work environment. Mr. Ladd testified that he remembers Ms. Austin’s work difficulties and
the use of a cane but was of the view that these events occurred after her second injury. According
to Ms. Austin, supervisor Ladd substituted another employee for her work line responsibilities and
authorized her to sit the entire shift in a break area. After this particular episode, Ms. Austin again
went to see her personal physician, Dr. David McCoy, who referred her to Dr. Thomas J. O’Brien.
Dr. O’Brien examined her but did not specifically inquire as to whether her injuries were workrelated or get the detailed job history of Ms. Austin’s employment. Dr. O’Brien’s medical records
reveal that Ms. Austin completed a questionnaire in which one of the questions asked her if her
medical problem was work-related and she failed to answer that question. Dr. O’Brien prescribed
pain medication and muscle relaxers as well as gave her anti-inflammatory medications. An MRI
on her back was performed that revealed a herniated disk at L5-S1which was repaired surgically.
The surgery occurred October 4, 2002. Ms. Austin was off work for six weeks and her medical
expenses were paid through her private health insurance. Dr. O’Brien made no indication in his
medical records that the injury was work-related or caused any permanent impairment until February
4, 2005, when he completed a Standard Form Medical Report for Industrial Injuries, C-32. In
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November of 2002, she was released to return to her normal duties. According to Ms. Austin, when
she returned to her employer she brought her doctor’s release to the assistant human resource
representative, Ms. Kirsten Mullins, and informed her for the first time that she believed her back
injury was work-related. According to Ms. Austin, Ms. Mullins asked her why she did not file a
workers’ compensation claim and Ms. Austin explained that she thought at the time that it was a
pulled muscle and didn’t realize until she was out of work that it was a back-related injury and
assumed it was too late to make such a claim.
Ms. Austin testified that after her surgery, she continued to have back pain and ultimately
sought a second opinion from Dr. John Wayne Bacon who informed Ms. Austin that her back injury
was potentially work-related and had caused a permanent disability. Dr. Bacon first saw Ms. Austin
on December 3, 2004. Dr. Bacon completed a Standard Form Medical Report For Industrial Injuries,
C-32, on December 16, 2004, in which he concluded that the back injury more probably than not
arose out of Ms. Austin’s employment.
II. Standard of Review
Review of the findings of fact made by the trial court is de novo upon the record of the trial
court, accompanied by a presumption of the correctness of the findings, unless the preponderance
of the evidence is otherwise. Tenn. Code Ann. § 50-6-225(e)(2)(2002). The reviewing court is
required to conduct an independent examination of the record to determine where the preponderance
of the evidence lies. The standard governing appellate review of the findings of fact of a trial judge
requires this panel to examine in depth the trial court’s factual findings and conclusions. GAF Bldg.
Materials v. George, 47 S.W.3d 430, 432 (Tenn. Workers’ Comp. Panel 2001). When the trial court
has seen the witnesses and heard the testimony, especially where issues of credibility and the weight
of testimony are involved, the appellate court must extend considerable deference to the trial court’s
factual findings. Whirlpool Corp. v. Nakhoneinh, 69 S.W.3d 164, 167 (Tenn. 2002); Townsend v.
State, 826 S.W.2d 434, 437 (Tenn. 1992). Our standard of review of questions of law is de novo
without a presumption of correctness. Perrin v. Gaylord Entm’t Co., 120 S.W.3d 823, 826 (Tenn.
2003). When medical testimony is presented by deposition, this court is able to make its own
independent assessment of the medical proof to determine where the preponderance of the evidence
lies. Cleek v. Wal-Mart Stores, Inc., 19 S.W.3d 770, 774 (Tenn. 2000); Houser v. Bi-Lo, Inc., 36
S.W.3d 68, 71 (Tenn. 2001).
III. Analysis
Dismissal for Failure to Comply with the Notice Provisions
of Tennessee Code Annotated section 50-6-201
The trial court’s order reveals the basis for its conclusion. The order states:
The first finding the Court makes with respect to notice is that
the injury was the result of gradual events. The Court basis [sic] this
finding upon the medical proof cited above and the employee’s
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explanation of the worsening of her condition from 2001 through
August of 2002.
Next, the court finds that the employer did not have actual
notice of the injury. In so finding, the court credits the testimony of
Mr. Ladd, the employee’s supervisor, that he was never told that the
employee injured her back at work. The Court credits Ladd’s
testimony in which he denied that in August of 2002 the employee
told him she hurt her back on the job. The Court credits his testimony
that his first notice came after the lawsuit was filed when he was
called for a deposition.
In the absence of actual notice to the employer, the worker’s
[sic] compensation notice statute requires the employee to provide
notice within thirty days of a gradual injury after the employee knows
or reasonably should know that the employee has suffered a workrelated injury that has resulted in permanent physical impairment.
With respect to this requirement, the Court finds from the proof that
the employee clearly testified at trial that in October of 2002, when
she consulted with Dr. O’Brien, she realized that her back injury was
work related [sic]. She then additionally testified that even after she
realized the injury was work-related she did not report the injury to
her employer because she thought it was too late to report and file it.
The proof established that it was not until the date that the lawsuit
was filed, May 23, 2003, that the employee gave notice that the injury
was work-related.
These facts establish that the employee knew or reasonably
should have known that she had suffered a work-related injury as of
October 2002. She did not provide notice, however, until her lawsuit
was filed in May of 2003. The employee, therefore, did not comply
with the requirements that she provide notice within 30 days of
reasonably knowing that she had suffered a work-related injury.
It is clear from the trial court’s finding of fact that Ms. Austin suffered a gradual work-related
injury that culminated in a herniated disk. Therefore, the notice requirements which were imposed
upon Ms. Austin were imposed by Tennessee Code Annotated section 50-6-201(b). This section
provides as follows:
(b) In those cases where the injuries occur as the result of gradual
or cumulative events or trauma, then the injured employee or such
injured employee’s representative shall provide notice to the
employer of the injury within thirty (30) days after the employee:
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(1) Knows or reasonably should know that such employee
has suffered a work-related injury that has resulted in permanent
physical impairment; or
(2) Is rendered unable to continue to perform such
employee’s normal work activities as the result of the work-related
injury and the employee knows or reasonably should know that the
injury was caused by work-related activities.
Tenn. Code Ann. § 50-6-201(b) (2006).
The notice requirement in the workers’ compensation statutory scheme “exists so that an
employer will have an opportunity to make a timely investigation of the facts while those facts are
still readily accessible, and to enable the employer to provide timely and proper treatment for an
injured employee.” Jones v. Sterling Last Corp. 962 S.W.2d 469, 471 (Tenn. 1998). An employee
who fails to notify his employer within the thirty days after he has sustained a work-related injury
forfeits the right to workers’ compensation benefits unless the employer has actual notice of the
injury or unless the employee’s failure to notify the employer was reasonable. Tenn. Code Ann. §
55-6-201(a) (1999 & supp. 2002).
The notice requirement of Tennessee Code Annotated section 50-6-201(b) is an attempt to
address the notice needed for a gradually occurring injury such as the one sustained by Ms. Austin.
An employee has a reasonable excuse from the notice requirement when the employee is ignorant
of the work-connected nature of the injury and that the injury has either impaired her permanently
or prevented her from performing normal work activities. Banks v. United Parcel Serv., Inc., 170
W.W.3d 556, 561 (Tenn. 2005). Until the employee knows or reasonably should know that the workrelated injury has either impaired her permanently or prevented her from performing normal work
activities, there is no requirement to notify the employer of the work-related injury under Tennessee
Code Annotated section 50-6-201(b) as the employee is reasonably excused from this requirement.
Banks, 170 S.W.3d at 561; see also Barnett v. Earthworks Unlimited, Inc., 197 S.W.3d 716 (Tenn.
2006). The notice requirement provided by this code section exists once the employee knows or
should reasonably know of the work-related nature of the injury and that the injury resulted in
permanent physical impairment or the injury prevents them from performing normal work activities.
Once this knowledge is obtained, Tennessee Code Annotated section 50-6-201(b) triggers the thirtyday notice requirement. In other words, the notice provision serves to protect the employer from
prejudice and to secure the employer’s right to control the provision of treatment. “Where the
employee is ignorant of the work-connected nature of his injury, however, the employer’s interest
must yield to the remedial purpose of the statute.” Banks, 170 S.W.3d at 562; see also Long v. MidTenn. Ford Truck Sales, Inc., 160 S.W.3d 504, 510 (Tenn. 2005)
We find that the trial court erred in applying Tennessee Code Annotated section 50-6-201(b)
to the facts of this case when the court concluded that Ms. Austin had failed to give proper notice
in October of 2002. Our review of the record demonstrates that Ms. Austin did not know that she
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had suffered a permanent injury or that her injury had prevented her from preforming normal work
activities until Dr. John Wayne Bacon rendered such an opinion in the Standard Form Medical
Report for Industrial Injuries, C32, on December 16, 2004. The records of Dr. Thomas J. O’Brien,
who performed the surgical procedure to correct Ms. Austin’s herniated disk, made no indication as
to whether her back condition was related to any work activities, and his medical impairment rating
of 10% to the body as a whole was first reached when he prepared again a Standard Form Medical
Report for Industrial Injuries, C32, in preparation for his deposition on February 4, 2005. Therefore,
there was no basis for Ms. Austin to report this gradual back injury until she was knowledgeable of
its permanency and/or that the injury would prevent her from performing normal work activities.
The entire purpose of the notice provision is to supply the employer an opportunity to timely
investigate and to provide medical treatment. The sequence of events in this case should be
considered with this purpose in mind in reviewing whether the employer was prejudiced by the lack
of any formal notice. It is significant to note that the trial judge found that this work-related injury
was associated with a gradual work injury that began in 2001 with back pain which abated with
minimal treatment. The back pain recurred in August of 2002 when it manifested itself in
debilitating pain which ultimately resulted in Ms. Austin leaving work at the end of August 2002,
and having the surgical procedure on October 2, 2002, with the employer’s full knowledge of her
medical problems, albeit without notice that the employee was asserting that the medical problems
were work-related. After six weeks of recuperation, Ms. Austin returned to work at her same job
after providing the employer the medical statement releasing her for employment duties in November
of 2002. On December 21, 2002, Ms. Austin suffered a second work-related injury when she broke
her hip. On December 31, 2002, GAF initiated a workers’ compensation lawsuit which Ms. Austin
was not knowledgeable of as they did not have a summons issued or served upon her. However,
clearly the employer had investigated the circumstances surrounding Ms. Austin’s work-related hip
injury and was knowledgeable of her previous absence from work for other medical reasons in order
to file their December 31, 2002 action. We conclude, from the evaluation of this record, that GAF
has not demonstrated prejudice in any way. We find that Ms. Austin’s filing of her lawsuit on May
23, 2003, provided adequate notice of her gradual work-related back injury and that the trial court
erred in dismissing her claim based on Tennessee Code Annotated section 50-6-201(b).
IV. Finding that Back Injury was Work-Related
The employer in this cause has appealed the trial court’s finding that the herniated disk
suffered by Ms. Austin was work-related. The trial court based its finding on the medical proof
presented and the employee’s explanation of the worsening of her condition from work activities
from 2001 through August of 2002. In making this determination, the trial court heard the testimony
and observed the demeanor of Ms. Austin as well as witnesses Michelle Brown, Gordon B. Gray,
Shawn Taylor and Tom Ladd. These witnesses were carefully considered by the trial court and when
a trial court has seen the witnesses and heard their testimony and especially where issues of
credibility and the weight of testimony are involved, this court must extend considerable deference
to the trial court’s factual findings. Nakhoneinh, 69 S.W.3d at 167; Townsend, 826 S.W.2d at 437.
When medical testimony is presented by deposition or records as it is in this case, this court is able
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to make its own independent assessment of that medical proof in determining where the
preponderance of the evidence lies. Cleek, 19 S.W.3d at 774; Houser, 36 S.W.3d at 71. A review
of the depositions and C32s reveal that Dr. Bacon found that the back injury was work-related. “In
most cases of work-related injury, causation must be established by expert medical evidence.” Fritts
v. Safety Nat’l Cas. Corp., 163 S.W.3d 673, 678 (Tenn. 2005). Absolute certainty in the medical
evidence, however, is not required, because “expert opinion by its very nature is always more or less
uncertain and speculative.” Id. Therefore, any reasonable doubt must be construed in the employee’s
favor. Id. “Benefits may properly be awarded upon medical testimony that shows the employment
‘could or might have been the cause’ of the employee’s injury when there is lay testimony from
which causation reasonably can be inferred.” Id. (quoting Clark v. Nashville Mach. Elevator Co.,
129 S.W.3d 42, 47 (Tenn. 2002)). We conclude that the trial court did not err in finding that the
back injury was work-related and gradual in nature.
V. CONCLUSION
After a careful review of the record, we reverse the trial court’s determination that the action
should be dismissed for failure to comply with the notice provision of Tennessee Code Annotated
section 50-6-201(b) for the reasons set forth in this opinion. In addition, this court affirms the trial
court’s conclusion that Ms. Austin’s back injury was work-related and the trial court’s assessment
of a 20% whole body impairment. The case is remanded to the trial court for enforcement of this
order. Costs of this appeal are assessed against the appellee, Building Materials Corporation, d/b/a
GAF Materials and its sureties in which execution may issue if necessary.
________________________________
J. S. DANIEL, SENIOR JUDGE
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IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
BUILDING MATERIALS CORP. D/B/A GAF MATERIALS CORP. v.
JOYCE AUSTIN
Chancery Court for Davidson County
Nos. 02-3885-III and 04-2553-III
No. M2006-00262-SC-WCM-CV - Filed - May 9, 2007
JUDGMENT ORDER
This case is before the Court upon the motion for review filed by Building Materials Corp., d/b/a
GAF Materials Corp., pursuant to Tenn. Code Ann. § 50-6-225(e)(5)(B), the entire record, including
the order of referral to the Special Workers’ Compensation Appeals Panel, and the Panel’s
Memorandum Opinion setting forth its findings of fact and conclusions of law.
It appears to the Court that the motion for review is not well-taken and is therefore denied. The
Panel’s findings of fact and conclusions of law, which are incorporated by reference, are adopted and
affirmed. The decision of the Panel is made the judgment of the Court.
Costs are assessed to appellant Building Materials Corp., d/b/a GAF Materials Corp. and its
sureties, for which execution may issue if necessary.
It is so ORDERED.
PER CURIAM
Wade, J., Not Participating
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