RICHARD VAUGHN
v.
CITY OF MURFREESBORO AND THE SECOND INJURY FUND
No. M2018-02048-SC-R3-WC
Tennessee Workers Compensation
Supreme Court of Tennessee, Special Workers’ Compensation Appeals Panel, Nashville
October 7, 2020
Session: September 30, 2019
Mailed
July 24, 2020
Appeal
from the Circuit Court for Rutherford County No. 66411 J.
Mark Rogers, Judge.
Employee
injured his left shoulder during a training session. He was
diagnosed with a torn shoulder ligament which required a
surgical repair of the left shoulder. Nine months later,
Employee's treating physician performed a posterior
capsular release of the left shoulder. When his symptoms
failed to improve, Employer authorized follow up care with a
different orthopedic surgeon, who performed another surgery
to release the bicep tendon that had been previously
repaired. Employer was provided with a letter from
Employee's treating physician that Employee's
restrictions had been lifted. Employee was required to take a
return to duty test, which he ultimately failed.
Subsequently, Employee developed intermittent violent
movements of his head and was diagnosed with conversion
disorder. At the request of Employee's counsel, Employee
underwent an independent medical examination by a
psychiatrist, who concluded that the conversion disorder
arose out of Employee's work injury. However, because the
psychiatrist noted issues regarding symptom magnification, he
reduced Employee's psychiatric impairment rating to ten
percent. Following a trial, the court awarded benefits for
injuries to Employee's left shoulder and for the
psychiatric injury; however, it found that Employee was not
permanently and totally disabled. The trial court also
declined to apply a multiplier to the impairment rating for
the psychiatric injury and award temporary total disability
related to that injury. The Employee appealed. 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 trial court's judgment.
Tenn.
Code Ann. § 50-6-225(e) (2014) (applicable to injuries
occurring prior to July 1, 2014) Appeal as of Right; Judgment
of the Circuit Court Affirmed.
D.
Russell Thomas, Murfreesboro, Tennessee, for the appellant,
Richard Vaughn.
Richard W. Rucker, Murfreesboro, Tennessee, for the appellee,
City of Murfreesboro.
Matt
D. Cloutier, Nashville, Tennessee, for the appellee, Second
Injury Fund.
Robert
E. Lee Davies, Sr. J., delivered the opinion of the court, in
which JEFFREY S. BIVINS, C. J, and DON ASH, SR. J., joined.
OPINION
ROBERT
E. LEE DA VIES, SENIOR JUDGE.
Factual
and Procedural Background
Employee,
Richard Vaughn, began working as a firefighter for the City
of Murfreesboro ("Employer") in 1998. On September
14, 2009, Employee was undergoing a training session which
involved heavy lifting. As he and a fellow employee were
reaching down to pick up another colleague, Employee began to
experience pain in his left shoulder and in the left side of
his neck. He reported his injury to Employer and was provided
treatment by Dr. Tom Johns, an orthopedic surgeon, who
diagnosed a torn shoulder ligament and performed a superior
labrum anterior and posterior (SLAP) repair of the left
shoulder on November 9, 2009. Post-surgery, Employee
continued to complain of pain and stiffness in his shoulder
and neck, even after physical therapy. On August 13, 2010,
Dr. Johns performed a posterior capsular release. Employee
saw other specialists for second opinions regarding his
shoulder and neck. When his symptoms did not improve,
Employer authorized follow up care with Dr. Chad Price, an
orthopedic surgeon. When Dr. Price first saw Employee on
March 3, 2011, Employee was still experiencing pain following
his prior surgeries. He complained of having shoulder pain
that was consistent with his bicep tendons and rotator cuff
being irritated. Dr. Price believed he could address those
issues by performing another surgery to release the bicep
tendon that had been previously repaired. Employee had a
second complaint of abnormal sensations down to his hand and
arm. This issue could not be explained as a result of the
shoulder injury, and Dr. Price did not think he could provide
any relief. On April 29, 2011, Dr. Price performed the
release of the bicep tendon.
At an
appointment with Dr. Price on August 9, 2011, Employee
reported that he did not have any specific pain in his
shoulder. Dr. Price noted that Employee had good range of
motion in his shoulder, consistent with his time period
post-surgery. Employee also indicated that the tenderness and
tightness around his shoulder were gone. At that point in
time, Dr. Price felt he had successfully treated
Employee's complaints. He made a return to work notation
of light duty with restrictions of no overhead work, no
lifting, no pushing, and no pulling greater than twenty
pounds.
On
September 22, 2011, the Employee's range of motion was
the same as his prior visit, but Employee was complaining of
some pain that had not been noted before. Dr, Price gave an
injection to determine if there was residual inflammation
around the shoulder which was causing pain. However, Employee
did not improve, which led Dr. Price to believe that portion
of the shoulder was not causing the problem.
Employee
saw Dr. Price again on November 3, 2011. By that time,
Employee had seen a physician for his cervical spine and a
neurosurgeon. These physicians concluded that Employee's
neck was normal and that the symptoms he was having were not
consistent with a nerve root compression in his neck. On
November 3, 2011, Dr. Price found Employee had a full range
of motion in his cervical spine, with occasional pain but not
in the same range of motion. Although Dr. Price performed the
examination several times, each time Employee's pain was
different at different times. Dr. Price testified that
Employee was difficult to rate for impairment because his
range of motion changed often as did his symptoms. For
example, Employee had negative Spurling's tests on March
3 and June 2, 2011, which indicated his neck was normal, but
on June 28, 2011 he had a positive Spurling's test. Dr.
Price ultimately decided that Employee needed a functional
capacity evaluation ("FCE") to determine his
permanent limitations. The FCE was performed on November 16,
2011 by a physical therapist. Dr. Price testified that the
report from the physical therapist indicated Employee did not
make a full effort in trying to represent what he was able to
do.
Dr.
Price also testified that at the appointment on November 3,
2011, Employee told him his physical therapist had worked on
some cervical traction, and that afterwards he experienced an...
