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Powers v. Johnson Controls6/11/2002
tinued working until January 1999, when she was forced to quit because of the severity of the pain. She has not worked since.
Through a series of referrals, the claimant returned to the surgeon who had treated the first injury, Dr. Randy Fly. On February 19, 1999, Dr. Fly performed rotator cuff surgery on her right shoulder. However, the surgery failed to relieve her symptoms. Dr. Fly estimated her permanent impairment from the right shoulder surgery to be 10 percent to the shoulder and referred her to a neurosurgeon.
The neurosurgeon, Dr. William Lee Moffatt, through diagnostic testing, found a cervical spur, a failed rotator cuff repair and symptoms of carpal tunnel syndrome. Dr. Moffatt performed a cervical diskectomy and fusion, as well as additional shoulder surgery in an effort to relieve the pain and other symptoms. At trial, Dr. Moffatt testified the claimant is "one hundred percent functionally and anatomically disabled" from work and that her inability to work is permanent. The claimant testified that she continues to suffer disabling pain and cannot work.
The Fund's first contention is that the claim is time-barred. An action by an employee to recover benefits for an accidental injury, other than an occupational disease, must be commenced within one year after the occurrence of the injury. Tenn. Code Ann. ยง 50-6-224(1). Actions against the Second Injury Fund in cases not involving prior workers' compensation awards must be commenced within one year after occurrence of the injury or, if the employer has made voluntary payment of compensation benefits within that period, within one year after cessation of benefits. Pearson v. Day Intern., Inc., 951 S.W.2d 375, 378 (Tenn. 1996). The running of the statute of limitations is suspended until by reasonable care and diligence it is discoverable and apparent that a compensable injury has been sustained. Ogden v. Matrix Vision of Williamson County, Inc., 838 S.W.2d 528 (Tenn. 1992). It is the date on which the employee's disability manifests itself to a person of reasonable diligence - not the date of accident - which triggers the running of the statute of limitations for an accidental injury. Hibner v. St. Paul Mercury Ins. Co., 619 S.W.2d 109 (Tenn. 1981).
The Fund contends the claimant knew she had an injury on the day she fell in May 1998, because she reported the injury to the employer. The Fund further contends the claimant knew her injury was disabling because she had previously suffered a similar injury to her left shoulder and was left with permanent restrictions. The argument overlooks the fact that the claimant continued working until January 1999, when she did become unable to work. The trial court found that the statute began to run on February 14, 1999, the date of the claimant's unsuccessful rotator cuff surgery. Giving considerable deference to the actual and implicit findings of the trial court, we cannot say the preponderance of the evidence is otherwise. February 14, 1999 is the day when a person of reasonable diligence would know, under the facts of this case, that she was permanently disabled.
Additionally, the uncontradicted testimony of Brothers is that the employer paid short and long term disability benefits to the claimant until receiving notice of the filing of this civil action. Thus, per the rule in Pearson, the action was timely.
The Fund next contends the employer is judicially estopped from proving at trial that it knew of the claimant's pre-existing disability after denying such knowledge in its answer. In creating the Second Injury Fund, the legislature set forth certain requirements to be met in order for an employee to receive benefits from the Second Inj
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