SUSAn Mason v. Old Time Pottery, 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. The plaintiff, Ms. Susan Mason, appeals the judgment of the trial court dismissing the case at the conclusion of trial after finding that Ms. Mason did not sustain a compensable workers' compensation injury because did not carry her burden of proof that the fall she had while working for the defendant, Old Time Pottery, aggravated her pre-existing condition and/ or caused her to have back surgery. The trial court also ruled that had it found that this had been a work-related injury it would have awarded Ms. Mason a 35% permanent partial disability to the body as a whole. For the reasons set out in this opinion, We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (2); Judgment of the Chancery Court Affirmed CAROL CATALANO, SP.J.,, in which ADOLPHO A. BIRCH, JR., J., and JAMES WEATHERFORD, SR. J., joined. Luther E. Cantrell, Jr., Nashville, Tennessee, for the appellant, Susan Mason. Robert R. Davies, Nashville, Tennessee, for the appellee, Old Time Pottery. E. Blaine Sprouse, Assistant Attorney General, Nashville, Tennessee, for the appellee, James Farmer, Director of the Division of Workers' Compensation, Tennessee Department of Labor, Second Injury Fund. OPINION Ms. Mason was 39 years old at the time of her slip and fall accident, which occurred on November 11, 1997, while working for the defendant, Old Time Pottery, Inc. Ms. Mason has an eleventh (11th) grade education. In the past, she has owned and operated an antique business; and worked as a cake decorator and floral designer. She had lived in Virginia all her life until moving to Murfreesboro, Tennessee, in June of 1997. Ms. Mason suffered from depression and had attempted suicide three different times before moving to Tennessee. She also had a 17 year history of back pain and right hip and leg pain. While in Virginia, she was under the treatment of an orthopedic surgeon and had applied for Social Security Disability benefits in November of 1996. On June 3, 1997, Ms. Mason went to work for the defendant as a floral designer. She also worked part time at another flower shop. On September 16, 1997, she saw orthopedic surgeon, Dr. Thomas O'Brien, where she reported a long his tory of ineffective treatments for back pain. She reported taking Lortab and Motrin for back and leg pain, and Prozac and Xanax for depression and anxiety. On September 23, 1997, Dr. O'Brien, after reviewing Ms. Mason's MRI, diagnosed "decreased disc signal consistent with degenerative disc disease at L4-5 and L5-S1 with bulges that were present at both levels." According to Dr. O'Brien's records on that date: I had a lengthy discussion with Ms. Mason regarding her treatment options and the fact that she had exhausted non-operative treatment measures. She has had symptoms now for 16 years and they have steadily been more progressive since she moved to Tennessee from Virginia. In the past she has been treated with physical therapy, multiple injections, and narcotic medications. Ms. Mason's treatment options would involve a decompression posterior lumbar interbody fusion with BAK or Ray cages. Becauseshe just started a job three months ago, we will plan on doing this at the end of the year. Dr. O'Brien scheduled a follow-up appointment in two months at which time the surgery would be scheduled. Ms. Mason maintained that in her discussions with Dr. O'Brien there was not anything definite done as far as making plans for future surgeryor any in depth discussions regarding the type of procedure to be performed. Ms. Mason also sought treatment for depression at The Guidance Center in Murfreesboro which was under the direction of Dr. Libby McCauley, a psychiatrist. On September 29, 1997, she met with therapist Mr. Bart Andrews whose report indicates that Ms. Mason "report[ed] chronic back pain that is making going to work on a daily basis quite difficult and is due to have major surgery as soon as her probation period is complete at her job." Ms. Mason testified that she may have discussed this with her therapist but did not tell him that she had back surgery scheduled and did not know why her therapist had charted this in her history. -2-