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Freeman Decorating Co. v. Bowers6/17/2002
We are unable to set out the facts and applicable law hereto better than did the Chancellor in his Memorandum Opinion. We thereby adopt the findings made by the Chancellor and quote as follows:
Findings of Fact
Defendant is forty-five (45) years of age and a resident of Sumner County, TN. He is a high school graduate. Defendant has received no further training.
Prior to coming on to work with plaintiff, defendant worked as a musician and in the pro sports arena.
Defendant underwent three prior neck surgeries in 1989, 1992 and 1994.
On September 30, 1999, defendant was loading a sofa on a truck when he felt pain in his neck and left arm.
Dr. John J. Kruse, a neurosurgeon, treated defendant and concluded that defendant suffered no anatomical change as a result of the September 30, 1999 incident but simply sustained increased pain. However, Dr. David Gaw, an orthopaedic surgeon and the independent medical evaluator, concluded that defendant suffered a compensable aggravation of the pre-existing cervical spinal stenosis. Thus, he assigned defendant an anatomical impairment of twenty-six percent (26%) to the body as a whole.
Defendant has been employed since reaching maximum medical improvement.
John J. Kruse, M.D.
Dr. John J. Kruse, a neurosurgeon, first treated defendant on October 20, 1999. Defendant informed Dr. Kruse that he had undergone a cervical laminectomy in 1985. After taking defendant's medical history and conducting a physical examination, he concluded that defendant suffered from multi-level spondylosis of cervical spine with loss of cervical lordosis and collapse of many disk spaces anteriorly. He further opined that defendant's condition was work related and assigned him an anatomical impairment of fifteen percent (15%) to the body as a whole.
However, subsequent to submitting the Standard Form Medical Report, Dr. Kruse learned that defendant had in fact undergone surgeries to his neck in 1991 and 1994. As a result, he recanted his previous diagnosis and concluded that defendant "did not sustain any permanent anatomic injury as a result of his work accident of September 1999." Dr. Kruse explained that the laminectomy that defendant underwent on January 25, 2000 was identical to his previous surgeries. In fact the September 1999 work accident only caused a flare up of pain. Defendant reached maximum medical improvement and was released to return to work on May 18, 2000.
Conclusions of Law
The plaintiff has the burden of proving a compensable injury by a preponderance of the evidence. Oster v. Yates, 845 S.W.2d 215 (Tenn. 1992). This burden is met if sufficient expert medical testimony is provided to demonstrate causation and permanency of a work-related injury. Tindall v. Waring Park Ass'n, 725 S.W.2d 935 (Tenn. 1987). A compensable injury is found when a "causal connection [is made] between the workman's accidental injury . . . and the nature of his employment." Aetna Cas. & Sur. Co. v. Long, 569 S.W.2d 444 (Tenn. 1978).
It is well settled that aggravation of a pre-existing condition may be compensable under the workers' compensation laws of Tennessee, but it is not compensable if it results only in increased pain or other symptoms caused by the underlying condition. Sweat v. Superior Industries, Inc., 966 S.W.2d 31 (Tenn. 1998).
This court has before it the medical opinion of two physicians. Dr. Kruse, the treating and operating physician, opined that defendant did not sustain an anatomical change but only increased pain. However, Dr. Gaw, the independent medical evaluator, opined that defendant
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