Jennifer Kelly v. Dollar General Corporation

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 5-6-225(e)(3) (Supp. 27) for a hearing and a report of findings of fact and conclusions of law. The employee had separate claims for carpal tunnel syndrome and a back injury. The trial court awarded 3% permanent partial disability for the carpal tunnel injury but dismissed the back claim. Both sides have appealed. The employer contends that the trial court erred in finding that the employee sustained her burden of proof as to causation of the carpal tunnel syndrome. The employee contends that the trial court erred in finding that she had failed to sustain her burden of proof as to permanent disability arising from her back injury. We affirm the judgment concerning the carpal tunnel claim, reverse the judgment concerning the back claim, and remand the case to the trial court. Tenn. Code Ann. _ 5-6-225(e) (Supp. 27) Appeal as of Right; Judgment of the Chancery Court Affirmed in Part, Reversed in Part, and Remanded DONALD P. HARRIS, SR. J., in which JANICE M. HOLDER, J., and ALLEN M. WALLACE, SR. J., joined. Gregory D. Jordan and W. Paul Whitt, Jackson, Tennessee, for the appellant, Dollar General Corporation. Steve Taylor, Memphis, Tennessee, for the appellee, Jennifer Kelly. MEMORANDUM OPINION FACTUAL AND PROCEDURAL BACKGROUND This is the second appeal in this case. Jennifer Kelly alleged that she sustained both carpal tunnel syndrome and a back injury as a result of her employment with Dollar General Corporation. Previously, the trial court had entered summary judgment for Dollar General on the back claim, based upon the statute of limitations. The trial court had dismissed the carpal tunnel syndrome claim after a trial on the merits, finding that Ms. Kelly had not provided timely notice of her injury. Kelly v. Dollar General Corp., Nos. W25-1891-SC-WCM-CV & W25-1174-SC-WCM-CV, 26 WL 2924815 (Tenn. Workers' Comp. Panel Sept. 25, 26). The Special Workers' Compensation Appeals Panel reversed both of these determinations and remanded the case for further proceedings. Id. at *6. After remand, the cases were tried together in the Chancery Court of Shelby County, resulting in the judgments which are the subject of this appeal. Ms. Kelly began working for Dollar General in 2. She was hired as a "third key manager" of one of Dollar General's stores, which meant that she ran the store during her shift. She later became assistant manager and then manager at the store. Her responsibilities included operating a cash register, loading and unloading trucks, stocking shelves, managing the schedules of other employees, tabulating sales information, and completing reports. Her back injury occurred in January or February of 21, when she fell while assembling a conveyor that was to be used to unload a truck. When she fell, the conveyor fell on her. Ms. Kelly testified that she was the assistant store manager at the time and reported the incident to the store manager, Annette Ross. Ms. Ross did not testify. Ms. Kelly did not request that Dollar General provide her with medical treatment at that time. On February 21, 21, she, without notice to Dollar General, consulted Dr. Mike Lemonds, who later became her primary care physician. She complained of low back pain and told him she had hurt her back. Dr. Lemonds failed to note and could not recall if she told him "where or when or how." Dr. Lemonds prescribed conservative treatment. She returned to him on several occasions over the following weeks. He ordered a magnetic resonance imaging ("MRI") study, which was performed on March 2, 21, and showed a herniated disc at the L5-S1 level and degenerative changes at other levels of her spine. Ms. Kelly continued to have symptoms, and Dr. Lemonds continued to provide conservative treatment over the next two years. Ms. Kelly's back pain periodically worsened during that time. Beginning in April or May of 21, Ms. Kelly began to experience numbness, tingling, and burning in her hands. She advised Dr. Lemonds of these symptoms on May 21, 21. When the symptoms continued to worsen in the latter part of 22, Dr. Lemonds suggested that a nerve conduction study be performed. This test was positive for bilateral carpal tunnel syndrome. Ms. Kelly continued to work for Dollar General until November 23. At that time, she was terminated for violation of a company policy concerning employee check cashing. Ms. Kelly was referred by her attorney to Dr. Tewfik Rizk, an orthopaedic surgeon, in April 24. Dr. Rizk evaluated her low back pain and diagnosed nerve root irritation at L5-S1 with radiculopathy. In October 24, Dr. Rizk ordered a nerve conduction study of Ms. Kelly's lower extremities. This test confirmed his diagnosis. Based upon the history given to him, Dr. Rizk was of the opinion that the most likely cause of this injury was her fall at work in 21. He assigned a permanent impairment of 12% to the body as a whole. Dr. Rizk testified that Ms. Kelly "should not be involved in any kind of activity which necessitates repetitive back movement such as pushing, -2- ****** Document Outline ****** * Page_1 * Page_2 * Page_3 * Page_4 * Page_5 * Page_6 * Page_7 * Page_8