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...