McCall v. Paving, 020721 TNWC, W2018-01676-SC-WCM-WC

Docket Nº:W2018-01676-SC-WCM-WC
Case Date:February 07, 2021
Court:Tennessee
FLOYD MCCALL
v.
FERRELL PAVING, ET AL.
No. W2018-01676-SC-WCM-WC
Tennessee Workers Compensation
Supreme Court of Tennessee, Special Workers’ Compensation Appeals Panel, Memphis
February 7, 2021
          Session July 22, 2019           Mailed October 31, 2019          Appeal from the Court of Workers’ Compensation Claims No. 2016-08-0214 Amber E. Luttrell, Judge          Floyd McCall (“Employee”) was a truck driver for Ferrell Paving (“Employer”). The parties stipulated that Employee sustained an injury arising out of and in the course and scope of employment on October 6, 2014, and that Employee gave timely notice of the injury. Employee received authorized medical treatment for the injury, paid for by Employer. Employee also received temporary total disability benefits for the period October 7, 2014 to February 5, 2015. Employee did not return to work for Employer following the injury. After being released from his authorized treating physician, Employee subsequently received unauthorized treatment, including surgery on his cervical spine. Employee filed this action seeking additional past temporary disability and medical benefits, permanent partial disability benefits, and future medical benefits. The Court of Workers’ Compensation Claims determined that Employee was not entitled to any additional workers’ compensation benefits. Employee has appealed that decision. The appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. We affirm the judgment.          Tenn. Code Ann. § 50-6-225(a)(1) (2014) (applicable to injuries occurring on or after July 1, 2014) Appeal as of Right; Judgment of the Court of Workers’ Compensation Claims Affirmed           Steve Taylor, Memphis, Tennessee for the appellant Floyd McCall.           Paul Todd Nicks, Germantown, Tennessee for the appellees Ferrell Paving and Phoenix Insurance Company.           William B. Acree, Jr., Sr.J., delivered the opinion of the court, in which Holly Kirby, J. and Mary L. Wagner, J., joined.          OPINION           WILLIAM B. ACREE, JR., SENIOR JUDGE.          Factual and Procedural Background          Employee worked as a cement truck driver for Employer. The parties stipulated that Employee sustained an injury arising out of and in the course and scope of employment on October 6, 2014, and that Employee gave timely notice of the injury. Employee received authorized medical treatment, for which Employer paid $14,008.23. Employee also received $8,770.30 in temporary total disability benefits for the period October 7, 2014 to February 5, 2015. The parties stipulated that Employee reached the maximum level of medical improvement on April 15, 2015. Employee did not return to work for Employer following the injury. After being released from his authorized treating physician, Employee subsequently received unauthorized medical treatment, including surgery on his cervical spine. Employee filed this action seeking additional past temporary disability and medical benefits, permanent partial disability benefits, and future medical benefits.          Testimony of Employee          At trial, Employee testified that on October 6, 2014, he was standing on the tire of a cement truck in order to raise the hood as part of his pre-trip inspection, when he lost his balance and fell approximately four feet to the ground. He landed on his left side, hitting his head, shoulder, elbow, and side of his hip. Employee went to Concentra where he received x-rays, medication, and physical therapy. Employee then selected Dr. Riley Jones from a panel of physicians provided by Employer. Dr. Jones ultimately released Employee back to work at full duty on February 4, 2015, although Employee testified that he was still having problems at that time. Employee returned to Concentra on February 6, 2015, and received a medical fitness determination to recertify his commercial driver’s license. Dr. Jones released Employee from his care on April 13, 2015, with no permanent work restrictions.          Employee testified that when he returned to Employer he was told that work was slow and he was given an unemployment card, but was unable to draw unemployment and instead found other work. He testified that he did not receive a separation notice from Employer. In February or March 2015, Employee worked for Nike through a staffing agency for a period of three to four months.1 Employee’s job was loading shoe boxes onto pallets. During Employee’s shifts at Nike, he would continuously load shoe boxes as they travelled down a conveyor belt onto pallets. Employee lifted boxes that were up to fifteen pounds. In April 2015, Employee saw Dr. Apurva Dalal for an independent medical examination requested by Employee’s counsel. Employee did not tell Dr. Dalal about the physical requirements of his job at Nike.          In May 2015, after leaving Nike, Employee went to work for Ingersoll Rand through another staffing agency.2 He was eventually hired full time in June 2016. At Ingersoll Rand, Employee worked several different jobs packaging parts that were continuously coming down a conveyor belt and operating machinery, all of which involved light lifting.          Employee saw Dr. Dalal again on November 16, 2015, for treatment. At the end of 2015, Dr. Dalal referred Employee to Dr. Glenn Crosby, who saw Employee for the first time on February 1, 2016. Employee testified that he was unable to continue seeing Dr. Crosby until he was able to obtain health insurance through Ingersoll Rand. Employee saw Dr. Crosby a second time in December 2016, and Dr. Crosby recommended surgery on his cervical spine, which was performed on March 23, 2017. Dr. Crosby released Employee from his care on May 15, 2017. Employee’s personal health insurance has paid for all of the medical care Employee received after he was released from Dr. Jones’s care.          Employee testified that he had no problems with his neck, shoulder, or elbow prior to his fall on October 6, 2014. After the fall, he could not turn his head to the left, but after surgery he could. Employee testified that from the time of his fall until he had the surgery his neck and shoulder continued to get worse. However, Employee did not miss any work related to his injury between the time Dr. Jones released him back to work and the date of his surgery. Employee further testified that he has not missed any work related to his injury since the surgery, and his supervisors have not complained about his performance as a result of his injury.          Employee testified that he continues to have issues with his left shoulder and elbow and tingling and numbness in two fingers on his left hand. He also has pain, numbness, and tingling in his left shoulder and arm, but he no longer has neck pain since the surgery. Employee also testified that he is no longer able to do much lifting with his left arm. In addition, the pain and numbness interrupts his sleep, although he still gets seven hours of sleep each night. He also testified that his injury does not affect his ability to stand, that he can sit still for approximately five hours, and that he can walk as far as needed. He also testified that Dr. Dalal and Dr. Crosby have discussed performing surgery on his left elbow.          Testimony of General Manager for Employer          Ricky Ferrell, General Manager for Employer, also testified at trial. Mr. Ferrell testified that Employee never...

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