MEMPHIS LIGHT GAS & WATER DIVISION
v.
JOHN PEARSON
No. W2018-01511-SC-WCM-WC
Tennessee Workers Compensation
Supreme Court of Tennessee, Special Workers’ Compensation Appeals Panel, Jackson
February 26, 2020
Session July 22, 2019
Mailed
December 3, 2019
Appeal
from the Chancery Court for Shelby County No. CH-15-0578
JoeDae L. Jenkins, Chancellor
The
employee appeals from the trial court’s denial of
workers’ compensation benefits. The employee asserted
that a slip and fall suffered at work aggravated preexisting
degenerative conditions in his left shoulder and neck,
causing injuries that are compensable under Tennessee’s
workers’ compensation laws. After a trial, the trial
court reviewed the testimony at length and held that the
employee had failed to establish a compensable injury. The
employee’s appeal has been referred to this Special
Workers’ Compensation Appeals Panel for oral argument
and a report of findings of fact and conclusions of law
pursuant to Tennessee Supreme Court Rule 51. Discerning no
error, we affirm the judgment of the trial court.
Tenn.
Code Ann. § 50-6-225(a) (2014) Appeal as of Right;
Judgment of the Chancery Court Affirmed
Steve
Taylor, Memphis, Tennessee, for the appellant(s), John
Pearson
Sean
Antone Hunt, Memphis, Tennessee, for the appellee(s), Memphis
Light, Gas, & Water Division
Holly
Kirby, J., delivered the opinion of the court, in which
William B. Acree, Sr.J., and Mary L. Wagner, J., joined.
OPINION
HOLLY
KIRBY, JUSTICE.
Facts
and Procedural Background
Defendant/Appellant
John Pearson, age 59, is a resident of Memphis, Tennessee.
For twelve years, Mr. Pearson was employed by
Plaintiff/Appellee Memphis Light, Gas & Water Division
(“MLGW”), a division of the City of Memphis.
During his employment with MLGW, Mr. Pearson worked as a
utility worker and a bucket truck driver and operator.
On
January 16, 2013, Mr. Pearson slipped and fell on ice as he
walked from his vehicle to his place of employment, allegedly
suffering an injury to his left shoulder and cervical spine.
Mr. Pearson notified MLGW of the incident on the same day.
However, he did not report it as a work-related injury at the
time and would not do so for at least six months.
As an
overview of his treatment, over the ensuing year, Mr. Pearson
saw a number of physicians for treatment of his shoulder
injury. On December 31, 2013, he underwent shoulder
replacement surgery. During this same period, Mr. Pearson
also saw several physicians for treatment of the injury to
his cervical spine. Ultimately, on April 9, 2014, a
neurosurgeon performed a spinal fusion on Mr. Pearson.
A
detailed recounting of Mr. Pearson’s medical history is
necessary for our analysis. In November 2010, Mr. Pearson saw
Timothy Krahn, M.D., an orthopedist, for treatment of his
left shoulder. At that time, Dr. Krahn determined that Mr.
Pearson suffered from post-traumatic arthritis in his left
shoulder.
On May
8, 2012, Mr. Pearson saw Michael Lynch, M.D., an orthopedic
surgeon, who at the time was a partner in medical practice
with Christopher Pokabla, M.D., also an orthopedic surgeon.
Mr. Pearson sought treatment from Dr. Lynch for severe
arthritis of the left shoulder, and presented with
limitations in his range of motion as well as pain. The
diagnostic studies performed on Mr. Pearson at that time
indicated severe arthritis, specifically end-stage
glenohumeral arthritis of the left shoulder. According to Dr.
Pokabla,
1 this consisted of loss of joint space,
cartilage thin from wear, bone spurs or osteophytes, and some
loose bodies. Dr. Pokabla later explained that this condition
typically took years to develop.
Following
a referral from Dr. Lynch, Mr. Pearson saw Dr. Pokabla on May
10, 2012. At that time, Mr. Pearson reported to Dr. Pokabla
that his condition had steadily deteriorated and that his
symptoms had persisted for at least two years. Mr.
Pearson’s complaints consisted of a limited range of
motion, weakness, and mechanical symptoms, all of which were
worse at night. Dr. Pokabla’s examination of Mr.
Pearson confirmed the limited range of motion as well as
crepitus, which Dr. Pokabla described as “popping and
clicking noises [that occur] when you move your joint
around.” Dr. Pokabla noted that Mr. Pearson’s
rotator cuff at that time was intact with no tenderness,
consistent with Mr. Pearson’s x-rays. Dr. Pokabla
agreed with Dr. Lynch’s assessment of severe arthritis.
Based on his x-rays and examination, Mr. Pearson was at that
time a possible candidate for shoulder replacement surgery;
such surgery would have been a reasonable course of
treatment. Instead, however, Dr. Pokabla opted to start with
a conservative treatment regimen that involved an
intraarticular injection and physical therapy. During that
visit, Dr. Pokabla performed the injection and then referred
Mr. Pearson for physical therapy.
Mr.
Pearson returned to see Dr. Pokabla on June 11, 2012. Mr.
Pearson reported that the injection had helped, the pain had
decreased, and he was able to sleep. Dr. Pokabla’s
notes at that time recommended against shoulder replacement
surgery in light of Mr. Pearson’s work as a manual
laborer. Dr. Pokabla later explained that, although he
thought Mr. Pearson would need the surgery in the future, Mr.
Pearson’s work would have had a negative impact on the
result of the surgery, by causing the reconstructed shoulder
joint to fail. Dr. Pokabla did not see Mr. Pearson again.
The
incident that gives rise to this lawsuit occurred on January
16, 2013, seven months after Mr. Pearson last saw Dr.
Pokabla. Mr. Pearson did not seek treatment immediately after
the incident; he waited four months and finally saw his
primary care physician, Reginique Green, M.D., on May 20,
2013. Dr. Green’s notes state that Mr. Pearson
“present[ed] with complaints of sudden onset constant
episodes of moderate shoulder pain, non-radiating.” The
notes do not mention a work injury.
2 Dr. Green diagnosed Mr.
Pearson as suffering from osteoarthritis of the shoulder. Mr.
Pearson later testified that he went to his primary care
physician because, at that time, he did not believe that the
January 2013 fall was connected to his shoulder pain.
Two
months later, on July 24, 2013, Mr. Pearson first sought
treatment through MLGW for his January 2013 fall. An MLGW
injury report from that day is the first indication in the
record that Mr. Pearson believed that his shoulder pain
resulted from the January 2013 incident. Two days later, on
July 26, 2013, Mr. Pearson visited Lisa Mahan, M.D., at the
Baptist Minor Medical Center. Dr. Mahan recorded what Mr.
Pearson described in her notes:
John Pearson presents with complaints of gradual onset of
constant episodes of severe on the left, described as aching
and throbbing, radiating to the left upper arm and left
neck[.] On a scale of 1 to 10, the patient rates the pain as
7[.] The symptoms resulted from a fall onto the arm[.] The
injury occurred at work[.] Episodes started about January 16,
2013[.] He is currently experience on the left[.] His
symptoms are reportedly caused by the injury[.] . . .
Symptoms are made worse by physical activity, shoulder
motion, shoulder elevation, internal rotation, external
rotation, lifting and throwing, but not by gripping[.]
Symptoms are worsening[.] Pertinent Medical History[:] no
pertinent past history (patient suffered fall at work on
1/16/2013 he fell back and caught himself with his left
outstretched arm and hammed his left shoulder—he did
not think much of this and has just been taking
NSAIDS—he has noticed that the left arm has been
getting worse over the past few months to the point that he
has difficulty raising the left arm above his head—he
is waking at night due to pain—and sometimes it hurts
just to have the arm dangle at his side—he is scheduled
to see orthopedics on August 5th but is in severe pain mainly
at night)[.]
After
Mr. Pearson reported the January 2013 fall as work-related,
MLGW’s workers’ compensation carrier provided him
with a list of three physicians. From this list, Mr. Pearson
selected Randall Holcomb, M.D., an orthopedic surgeon.
Mr.
Pearson saw Dr. Holcomb on August 5, 2013, two weeks after he
saw Dr. Mahan at the Baptist Minor Medical Center. According
to Dr. Holcomb, Mr. Pearson complained of a painful left
shoulder that had previously been manageable but worsened
after the January 2013 incident when Mr. Pearson tried to
break his fall with his outstretched left arm. Mr. Pearson
told Dr. Holcomb that he had been able to put up with...
