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Funk v. Travelers Indemnity Co.6/9/2005
I. FACTUAL BACKGROUND
David Dewayne Funk was forty-seven (46) years of age at the time of trial, had a GED diploma, had no special skills or training and had generally performed basic labor when he has worked. Mr. Funk began working for Genlyte Thomas in July 1999. On November 5, 2001, he slipped in some water or grease near a water fountain and injured his knee. Dr. Donald Arms performed surgery on the knee on December 17, 2001. Mr. Funk returned to work on January 7, 2002, and was assigned light duty. He was still on light duty at the time of the current injury, January 28, 2002. On the day of his injury he was using a grinder to correct a manufacturing defect in latches to be installed on light fixtures manufactured by Genlyte Thomas. In performing this job, the plaintiff would obtain a box of latches, pull them onto a table, grind them, re-box them and then obtain another box of latches. On the second day doing this job, he heard something pop and felt pain in his neck and shoulders. He continued trying to do the job, but the pain became stronger. He reported the injury and an appointment was made to see Dr. Arms the following day. Mr. Funk continued treatment with Dr. Arms until an MRI was ordered and the workers' compensation carrier denied payment for such a procedure. Dr. Arms referred Mr. Funk to Dr. Michael Moran and Mr. Funk began treatment with him using his private medical insurance. Dr. Moran performed surgery on plaintiff's neck on June 18, 2002. He was finally released by Dr. Moran in October 2002.
Mr. Funk continues to have pain in his neck that causes cramps in his arms to the extent that he is hardly able to use them. He has difficulty sleeping which causes him to be less productive in his daytime activities. He has difficulty riding or driving a vehicle, standing or sitting for long periods of time, walking, and has a twenty-pound lifting limitation. He is not currently taking medication for pain but has no insurance and, thus, cannot afford it.
Mr. Funk has neither worked nor looked for work since the injury on January 28, 2002. He went to the unemployment office in February 2002. He received unemployment checks in the amount of $224 per week until March 2003. In order to receive unemployment compensation he certified that he was able to work and was actively seeking employment. According to Mr. Funk, he decided in September or October of 2002 that he was unable to work.
II. MEDICAL AND EXPERT EVIDENCE
Dr. Robert Landsberg, a board certified orthopaedic surgeon, examined plaintiff on December 16, 2002, for the purpose of an independent medical evaluation. Dr. Landsberg reported that he reviewed the notes of Dr. Arms for January 20, 2002, through May 14, 2002, the MRI from Riverpark on March 20, 2002, and the physical therapy notes from September 2002 with respect to the neck postoperatively. He also had the note from Dr. Daniel Lalonde, dated April 11, 2002, concerning the EMG and notes from Dr. Michael Moran from April 18, 2002 through October 18, 2002. He also reviewed the operative report of June 18, 2002 from Middle Tennessee Medical Center.
Mr. Funk reported to Dr. Landsberg that while he was grinding plastic latches, he started developing discomfort and then had a pop in his neck. He experienced pain in his neck and down his right arm, some pain in the left arm, along with numbness and tingling in his hands. He was referred to Dr. Arms on January 29, 2002. Dr. Arms believed he had a cervical disc problem, prescribed a neck collar, the drug Neurontin and exercises. Mr. Funk continued to have complaints and, on March 20, 2002, an MRI was performed showing a small bulge at C4/5 and much more disc herniation
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