Sharon D. Keller v. National Healthcare Corporation

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 42 percent permanent partial disability as a result of a rotator cuff tear injury. The employer contends the evidence preponderates against the award. Other issues relate to the award of temporary total benefits, proper notice and the statute of limitations. The judgment is affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court is Affirmed ROGER E. THAYER, SP. J., in which WILLIAM M. BARKER, J., and H. DAVID CATE, SP. J., joined. Paul Campbell III, Chattanooga, Tennessee, for Appellant, National Healthcare Corporation. John Mark Griffin, Chattanooga, Tennessee, for Appellee, Sharon D. Keller. MEMORANDUM OPINION The employer, National Healthcare Corporation, has appealed from the trial court's action in awarding the employee, Sharon D. Keller, 42 percent permanent partial disability to the body as a whole. Factual Background The employee, a fifty-one year old high school graduate, was working as a medical receptionist during March 19991 when she testified she injured her right shoulder while moving a box of medical records. She described the incident as causing a "stabbing horrible pain" in her shoulder. She said she immediately told office Manager Tina Cline, who was also working in the general area. Ms. Cline admitted being told of the incident and said she told Ms. Keller to not do anymore lifting. She stated she did not fill out an accident report but probably should have. When pressed by counsel as to why she did not fill out a report, she responded that the office was in the process of closing, records were being packed and sent to another location, and it was just a chaotic time and she just never got around to doing it. She also testified that her supervisor, Janet Avery, was aware of Ms. Keller having hurt her shoulder while working. Ms. Cline left this employment during May 1999. The employee sought medical treatment from Dr. Lester F. Littell, a physician she had been seeing for other problems. An MRI report indicated she had a right rotator cuff tear and surgery was performed on May 2, 1999. After recovering from surgery, she worked on a part- time basis for Dr. Littell from August 1, 2 until December 2, when he relocated his practice. She also worked some for a Dr. Driskin, who took over Dr. Littell's practice. Since then and up to the time of the trial, she has worked as a sitter for different patients. Witness Janet Avery testified she was the regional contract account manager for the employer and that her first knowledge of a work-related injury was not until August 1999 when she talked with Ms. Keller by phone. Dr. Lester F. Littell, an orthopedic surgeon, was the only medical witness and testified by deposition. He stated Ms. Keller had been under his care for some period of time and that he had operated on both of her knees due to a congenital condition. He repaired the rotator cuff tear on her right shoulder during May 1999 and felt by history she had sustained the injury while lifting or moving the box of medical records. He was of the opinion she had a 7 percent medical impairment to the body as a whole and said her recovery period would be from three to six months. His records were filed as an exhibit to his deposition and they indicated she reached maximum medical improvement during November 1999. Other statements in the records indicated she was totally disabled from April 13, 1999 to August 27, 1999. Restrictions on reaching and lifting were imposed. Issues on Appeal The employer has raised a number of questions on appeal which we find narrows down to the following issues. The employer contends (1) the employee failed to give proper notice of the injury, (2) the statute of limitations had run on the claim, (3) the court was in error in awarding temporary total disability payments, and (4) the evidence preponderates against the award of 42 1 The time of the incident was in dispute. The employee originally stated the incident happened during February 1999 but later amended the complaint to allege the injury occurred during mid-March 1999. -2-