Michael L. Collins v. Advent Electric d/b/a Encompass

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 trial court awarded the employee 7 percent permanent partial disability. The insurance carrier contends the trial court was in error in finding (1) proper notice of injury had been given, (2) the action was timely filed and not barred by the one year statute of limitations, and (3) the expert medical testimony was sufficient to establish causation of injury. Judgment is affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed ROGER E. THAYER, SP. J., in which WILLIAM M. BARKER, J., and H. DAVID CATE, SP. J., joined. Linda J. Hamilton Mowles, Knoxville, Tennessee, for Appellant, Insurance Company Of The State Of Pennsylvania. James M. Davis, Morristown, Tennessee, for Appellee, Michael L. Collins. MEMORANDUM OPINION The insurance carrier, Insurance Company Of The State Of Pennsylvania, has appealed from the trial court's action in awarding the employee, Michael L. Collins, 7 percent permanent partial disability to the body as a whole. Factual Background Employee Collins, a forty-eight-year-old high school graduate with vocational training, was employed as an electrician by Advent Electric Company1 during November 1999 when he sustained an injury as a result of falling from a ladder at the Nova Corporation job site. He stated he was pulling electrical wires when the ladder twisted causing him to fall to the concrete floor where he struck his head and shoulder. He testified he immediately felt a burning sensation in the back of his neck and he cut his back by striking the corner of a metal transformer. The incident happened near the end of the workday and he said he did not think he was seriously hurt. Several days later, his supervisor, Rick McIntosh, came to the job site to pick up some materials and he stated he told McIntosh that he had fallen from the ladder. He said the supervisor then asked if he had gone to see a doctor and he replied he did not think it was necessary. After several months, he began to experience problems with his arm becoming numb and shoulder pain and he finally went to see his family doctor, Dr. Kenneth Hill. He told the doctor he thought he was having some bursitis problems and he was later given cortisone injections. After some period of time while under Dr. Hill's care, it was decided that the employee should have an MRI examination. When he went to have the MRI exam, he was in so much pain he could not lay down long enough to take the examination. It was then rescheduled and Dr. Hill gave him a shot immediately before going for the MRI exam. The result of the test was positive and Dr. Hill referred the employee to Dr. Robert E. Finelli, a neurosurgeon. Dr. Finelli saw him for the first time during May 21 and told him he had a serious injury which would require two surgical procedures. The employee then notified his employer of the doctor's diagnosis and recommendations and requested that he be allowed to file a workers' compensation claim. Advent Electric Company declined to treat the matter as a workers' compensation claim since the employee's supervisor denied being aware of the injury and also because of the elapse of time since the incident allegedly happened. Dr. Finelli operated on the employee during May 21; this suit was instituted on July 2, 21 and the employee was terminated from employment because of his physical condition on August 27, 21. During the next month of September, a second surgical procedure was performed. As to his condition at the time of the trial, he told the trial court the first surgery eliminated a great deal of his pain and the second surgery also helped his condition but he was still having a lot of problems. He stated he was still having pain in his right shoulder and his neck and he felt it was moving on to his left side; that he could not sleep well and still had some numbness down his right arm into his fingers; that sometimes his hand would "go dead". Since leaving employment with Advent Electric he said he had worked at some odd jobs here and there and was employed at the time of the trial with Precision Electric Company but his employer was not aware of his physical problems and he would have to stop working as soon as he was called on to do electrician work. 1 Advent Electric Company d/b/a Encompass Electrical Technologies of East Tennessee, Inc., was originally a party defendant but plaintiff took a voluntary nonsuit before trial after his employer filed a voluntary petition in bankruptcy. -2-