FREDERICK PERRY,
v.
THYSSENKRUPP ELEVATOR CORPORATION
No. W2019-01549-SC-R3-WC
United States District Court, W.D. Tennessee
Supreme Court of Tennessee, Special Workers’ Compensation Appeals Panel, Jackson
September 16, 2020
Session April 20, 2020
Mailed
August 14, 2020
Appeal
from the Chancery Court for Hardeman County No. 18764Martha
B. Brasfield, Chancellor Mailed August 14,
2020;
Frederick
Perry (“Employee”) worked for Thyssenkrupp
Elevator Corporation (“Employer”) at a variety of
jobs beginning in 1988. On February 22, 2013, Employee was
working on a cutting machine cutting steel elevator panels.
While attempting to move a large steel panel from the work
table to a pallet with a jib crane, Employee slipped and
fell. Employee was determined to have suffered a torn labrum
in his right hip and a torn meniscus in his right knee, which
were surgically repaired. Employee’s treating
orthopedic surgeon, Dr. Adam Smith, placed Employee at
maximum medical improvement (“MMI”) on June 13,
2014. He assigned Employee anatomical impairment ratings of
3% to the lower right extremity for the right hip injury and
3% to the lower right extremity for the right knee injury,
for a combined anatomical impairment rating of 6% to the
lower right extremity or 2% to the body as a whole. Dr. Smith
placed certain restrictions on Employee. Employer returned
Employee to work at another job accommodating his
restrictions and providing a higher rate of pay. On March 3,
2015, Employee underwent an independent medical examination
by physical medicine and rehab physician, Dr. Samuel Jae Jin
Chung, on referral from his attorney. Dr. Chung diagnosed
Employee as suffering “[r]esidual from right knee
injury requiring extensive surgical intervention with ongoing
symptoms of right patellofemoral arthritis” and
“[r]esidual from right hip injury secondary to fall
with status post surgical intervention with ongoing
symptomatology.” Dr. Chung assigned Employee anatomical
impairment ratings of 15% to the right lower extremity for
the right knee injury and 22% to the right lower extremity
for the right hip injury, for a combined anatomical
impairment rating of 34% to the lower right extremity or 13%
to the body as a whole. Dr. Chung placed certain restrictions
on Employee and suggested the possibility of need for a
future right knee replacement. A Benefit Review Conference
was held on December 2, 2015, resulting in an impasse. The
parties were unable to resolve the extent of Employee’s
anatomical impairment or his vocational impairment. Employee
brought suit. The parties stipulated or agreed that Employee
had received all the temporary total disability benefits to
which he was entitled, Employer had paid all authorized
medical expenses, and the 1.5 multiplier cap applied. The
trial court rejected the anatomical impairment ratings of
both Dr. Smith and Dr. Chung and adopted its own modified
anatomical impairment ratings of 18% to the lower right
extremity for the right hip injury and 14% to the lower right
extremity for the right knee injury, for a combined
anatomical impairment rating of 29% to the lower right
extremity or 12% to the body as a whole. The trial court
awarded Employee permanent partial disability benefits based
upon a vocational impairment of 18% to the body as a whole.
Employer has appealed and 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 in
part and reverse in part the judgment of the trial court.
Tenn.
Code Ann. § 50-6-225(e) (2014) (applicable to
injuries occurring prior to July 1, 2014)
Appeal as of Right; Judgment of the Chancery
Court Affirmed in Part and Reversed in Part
Hailey
H. David, Jackson, Tennessee, for the appellant,
ThyssenKrupp Elevator Corporation Christopher L. Taylor,
Memphis Tennessee, for the appellee, Frederick Perry
Kyle
C. Atkins, J., delivered the opinion of the court, in which
Roger A. Page, J. and Arnold B. Goldin, J., joined.
OPINION
KYLE
C. ATKINS, JUDGE
Factual
and Procedural Background
A
Benefit Review Conference was held on December 2, 2015,
resulting in an impasse. The parties were unable to reach
agreement with respect to the extent of Employee’s
anatomical impairment or his vocational impairment. Employee
filed this workers’ compensation action, and a trial
was held in the Chancery Court for Hardeman County on June
26, 2019.
Stipulations
The
parties stipulated to the compensability of the claim, the
application of the 1.5 multiplier cap in Tenn. Code Ann.
§ 50-6-241(d)(1)(A) (applicable to injuries occurring
between July 1, 2004 and July 1, 2014), and the weekly
compensation rate of $670.40. The parties also agreed that
all of Employee’s authorized medical expenses had been
paid and that Employee had been paid all temporary total
disability benefits to which he was entitled.
Testimony
of Employee
At the
time of trial, Employee was 50 years old, had been married
for 29 years, and had three sons. He had completed high
school and had additional vocational training in drafting
blueprints and in maintenance, as well as some seminary
training. Employee had worked for National Spray-On carrying
hoses and ladders and for Master Slack, a garment factory.
Employee began working for Employer in 1988, holding a series
of different jobs.
On
February 22, 2013, Employee was working on a plastic cutter
used to cut large sheets of metal for elevator panels.
Employee testified that as he was attempting to move a large
piece of finished metal from the table to a pallet with a jib
crane, he slipped and fell. Employee described his fall as
follows:
So when I stepped down off those steps and stepped down, I
didn’t realize he had a metal skid sitting right there
with a piece of cardboard in it, and when I stepped off
pulling that jib crane, ‘cause I was watching that big
plate that was dangling on there, when I stepped off, my
right leg first, it kicked that cardboard and I done the
splits. I mean, I hit the floor, hit the metal skid. Inside
of that metal skid is where I landed, and that plate, I had
to let it go because I was pulling it. So as I let it go, I
was afraid it was gonna come over me, so I hurried up and
twisted and got up out of the way, and the lift driver jumped
off to come over as well. So when I got up, I mean, it felt
like somebody had hit me in my male area. I mean, it was a
bad feeling. So he said, “Are you all right,” and
he helped me get to the bathroom, and I told him, I said,
“man, I just need some time.” I was trying to
gather myself. That's how I done it.
Employee
testified that he did not, to his knowledge, hit his knee on
the ground when he fell on February 22, 2013. Employee
reported his injury but did not immediately seek medical
attention because he thought the pain would pass.
Employee,
however, experienced persistent pain on the inside of his
right leg in the groin area, so he subsequently sought
medical treatment. Employee was referred by Employer to Dr.
Edwards. According to Employee, Dr. Edwards did not find
anything wrong with the groin area and so referred Employee
to the Bone & Joint Clinic, where Employee saw Dr.
Michael Cobb, an orthopedic surgeon. Employee testified that
Dr. Cobb took x-rays and gave him a shot, but could not find
anything. Consequently, after 4 months and no change in his
symptoms, Employee again contacted Employer and selected Dr.
Adam Smith, an orthopedic surgeon, as his authorized treating
physician.
Employee
testified that Dr. Smith reviewed his x-rays and determined
that Employee had suffered a torn labrum in his right hip.
Dr. Smith performed surgery to repair the hip. According to
Employee, he was doing well after surgery and engaging in
physical therapy and using crutches when he began to notice
pain in his right knee. Employee had not realized that he had
suffered a knee injury until this time. Employee testified
that Dr. Smith took an x-ray and determined that Employee had
suffered a torn meniscus in his right knee, which Dr. Smith
also surgically repaired. Employee acknowledged that he had
prior problems with his left knee which were not
work-related, but denied any prior problems with his right
knee and further denied any injury to his right knee
subsequent to his February 22, 2013 fall. He testified that
the treatment to his right knee has been continuous since the
problem was diagnosed by Dr. Smith.
Employee
underwent physical therapy for his hip and knee and...
