                      IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE



PEARL NIXON,                         )
                                                              FILED
                                     )                           June 2, 1999
       Plaintiff/Appellee,           )      Wilson Circuit No. 8854
                                     )                        Cecil Crowson, Jr.
v.                                   )                      Appellate Court Clerk
                                     )
SHONEY’S, INC.                       )      Appeal No. 01A01-9711-CV-00629
                                     )
       Defendant/Appellant.          )


             APPEAL FROM THE WILSON COUNTY CIRCUIT COURT
                          AT LEBANON, TENNESSEE


                        THE HONORABLE BOBBY CAPERS, JUDGE



For the Plaintiff/Appellee:          For the Defendant/Appellant:

Henry Clay Barry                     Andrew C. Rambo
Lebanon, Tennessee                   Shelbyville, Tennessee




                                     AFFIRMED AS MODIFIED


                                     HOLLY KIRBY LILLARD, J.



CONCURS:

W. FRANK CRAWFORD, P.J., W.S.

DAVID R. FARMER, J.
                                              OPINION

       This is a personal injury slip and fall case. The plaintiff was injured when she fell in the

defendant’s restaurant due to a tray negligently left on the floor. The defendant restaurant admits

liability but asserts that the evidence does not support the amount of the trial court’s award and seeks

a remittitur. We affirm the trial court’s decision as modified.

        On January 26, 1993, the plaintiff, Pearl Nixon (“Nixon”), sustained injuries in the

defendant’s restaurant, Shoney’s, Inc. (“Shoney’s”). As Nixon walked around the end of the

breakfast bar, she stepped into a bussing tray that was left unattended adjacent to the bar. The tray

slid out from under her feet, causing her body to be thrown against the bar with one leg underneath

her body. Nixon testified that she did not see the tray and would not have seen it even if she would

have looked down because of the dim lighting in that area of the restaurant.

        After the incident, Nixon filed this lawsuit against Shoney’s alleging that the Defendant’s

employees negligently left the tray on the floor. She sought $100,000 as compensatory damages for

her injuries, pain and suffering, medical bills, future pain and suffering, and future medical bills.

In its Answer, Shoney’s admitted that Nixon stepped in a busing tray while she was a customer in

their restaurant. All other allegations were denied. Shoney’s raised the defenses of failure to state

a claim, contributory negligence, and assumption of the risk. The case was heard as a bench trial.

        Over the four and one-half year period prior to trial, Nixon saw several physicians,

complaining at various times of pain in her shoulder, arm, left rib cage, left hip, lower spine, right

knee, and left ankle. The parties stipulated that the $6500 she spent in seeing these doctors was a

reasonable amount for medical expenses.

        After the injury, Nixon saw Dr. Randy C. Fullerton, who treated her for pain in her chest,

right knee, left ankle and hip. Dr. Fullerton then referred Nixon to Dr. Stephen Neely, in June 1993,

some four and one-half months after the fall. A referral letter from Dr. Fullerton to Dr. Neely

indicated that Nixon’s injuries were resolved except for pain in her hip and back. Nixon complained

of back pain for the first time approximately ten days before she saw Dr. Neely. On the visit with

Dr. Neely, Nixon complained to Dr. Neely of pain in the left rib cage, left iliac crest, and left hip.

A bone scan indicated arthritis in the right knee and left ankle and healing rib fractures. Dr. Neely

stated that the rib fractures, ankle pain, and knee pain were consistent with and more likely than not

related to the fall, based on his opinion that the fall aggravated existing arthritic conditions in the

knee and ankle. A myelogram showed bulging of the annulus and degenerative disk disease in
Nixon’s back. Dr. Neely stated that the back problems probably pre-existed the fall because they

“don’t just develop in a short term after injury.” Dr. Neely noted that the only way that he could

correlate the spine problems with Nixon’s back pain was to say that the “pre-existing degenerative

disk disease in her twisting mobality [sic] as she went down, had been stirred up.” However, when

asked about medical certainty of the cause of the back pain, Dr. Neely testified as follows:

       A:       Ascribing her pain to the degenerative changes that we saw on our studies;
       those changes certainly pre-dated her injury, but it’s certainly possible that the
       symptoms were certainly exacerbated by the fall.
       Q:       Would it be your opinion to a degree of medical certainty, and by a degree of
       medical certainty, I mean more likely than not, from the history she gave you that the
       pain that existed in her lower back is a result of the fall?
       A:       Honestly, I’m not sure to a degree of medical certainty on that issue. I said
       twice in my notes, I’m not sure what’s going on here. The pain was not typical of
       the pain one sees with degenerative disks. It was over a wider area involving the
       iliac crest, and you know, I never was comfortable that I understood what that pain
       was from. I just never felt I had a handle on why that lady had that pain.

In December of 1993, Nixon began complaining to Dr. Neely of shoulder pain; however, when dye

was placed in the joint, apparently to test for the cause of the pain, the test was negative. Nixon

consulted Dr. Neely for the last time in April 1994 about pain in her shoulder, back, and left leg, but

did not return for follow up visits.

       In December of 1995, almost two years after the fall, Nixon began seeing Dr. Richard T.

Rutherford. She complained to Dr. Rutherford of pain in her left hip, leg, and back. His

examination showed osteoporosis and osteoarthritis of the lower lumbar vertebrae, severe

degenerative disc disease, and neuroforamenal stenosis at the L5 level.1 In Dr. Rutherford’s opinion,

the fall could have resulted in the pain of which Nixon complained:

       Q:       Based on the history, did you relate those injuries to a specific event?
       A:       The radicular pain that she was having was, in my opinion, related to nerve
       root irritation that we found on testing, and although present at the time of the fall,
       the fall could very easily have set off a series of reactions in the body that resulted
       in the pain.
       Q:       Did she report that she had that pain before the fall?
       A:       No, she didn’t have that specific pain.
       Q:       Are your findings consistent with the fall setting off the chain of events that
       brought her to see you?
       A:       That is plausible, yes, sir.
       Q:       What is your prognosis?




       1
              Dr. Rutherford explained that neuroforamenal stenosis occurs when the openings
through which nerves pass shrink in size, thus putting pressure on the nerves.

                                                  2
       A:     Her--she is going to continue to have problems throughout her life . . . . But
       at the current state of the art, she may at some point require surgery for the
       neuroformenosis. Osteoporosis typically tends to get worse over a period of time.
       Q:     Is it your opinion that the pain will increase or decrease?
       A:     It’s going to wax and wain, probably never going away.

When asked on cross examination whether he found objective findings of a causal connection

between the fall and the hip or back injuries, Dr. Rutherford stated that the cause was

neuroforamenal stenosis, “but the cause of the cause, there was no way of knowing” to a reasonable

degree of medical certainty.

       Both Nixon and her son testified about how the fall had affected Nixon’s life. Nixon testified

that she cannot do certain activities that she could perform prior to the fall, such as mowing her lawn,

climbing, stooping, bending, putting on her pantyhose, standing on her feet for extended periods,

vacuuming, and taking walks. Nixon’s son testified that her inability to bend down now prevents

her from washing dishes or using her lower oven. He testified that she cannot now cook large

holiday meals or effectively trim her hedges as she used to, and that she must now sleep in an

inclined position.

        The trial court found Shoney’s to be one hundred percent at fault and awarded Nixon $55,000

in compensatory damages. In its oral ruling the trial court emphasized that Nixon had no medical

problems prior to the fall and that her arthritis, which previously caused her no discomfort, now

causes her to have “good days and bad days as it relates to the pain associated with this injury.”

From this order, Shoney’s now appeals.

        The sole issue for appellate review is whether the evidence preponderates against the trial

court’s damages award.

        Our standard of review is governed by Rule 13(d) of the Tennessee Rules of Appellate

Procedure. Because the trial court tried this case sitting without a jury, we review the case de novo

upon the record with a presumption of correctness of the findings of fact by the trial court. See

Tenn. R. App. P. 13(d).

        Shoney’s does not dispute the medical testimony that Nixon fractured several ribs in the fall

and aggravated pre-existing arthritis in her ankle and knee and does not dispute its liability for these

injuries. Shoney’s relies on Dr. Fullerton’s letter to Dr. Neely to argue that the injuries related to

the fall were resolved within 120 days after the fall, and that therefore, Nixon can only recover for

pain and suffering for the four month period after the trial. Shoney’s contends, however, that there


                                                   3
was no proof to a reasonable degree of medical certainty relating Nixon’s injuries in her shoulder,

hip, and back to the fall, and that therefore, the evidence preponderates against the amount of the trial

court’s award of damages. Shoney’s notes that Nixon did not complain of back injuries until four

months after the fall. In addition, Shoney’s maintains that Nixon’s current physical limitations are

all caused by back problems and are unrelated to the fall.

        “Where a physician testifies concerning the physical condition, his opinion must be

reasonably certain both as to the cause of the physical condition and its future effects.” Porter v.

Green, 745 S.W.2d 874, 877 (Tenn. App. 1987). To support an award for damages, the physician’s

testimony must show more than a mere likelihood or possibility. See id. In this case, Nixon failed

to demonstrate with reasonable certainty that the fall in Shoney’s caused her back, hip, or shoulder

problems. Although both Dr. Neely and Dr. Rutherford testified that the fall possibly could have

aggravated the back and hip conditions, neither could say to a degree of medical certainty that the

fall caused the pain or conditions. There was no testimony as to the causation of the shoulder pain.

Nixon’s testimony about the effect of the fall on her daily activities is insufficient to show a causal

relation between the fall and the back, shoulder, or hip injuries. Because Nixon failed to prove the

cause of these injuries to a reasonable certainty, the evidence preponderates against any

compensation for them.

         Nixon’s recovery is limited to compensation for damages she has shown to a degree of

reasonable medical certainty--the fractured ribs and aggravated arthritic conditions in her knee and

ankle. In order to recover for permanent injuries to these areas, however, Nixon must prove the

future consequences of these injuries to a degree of reasonable medical certainty. See id. This was

not done. Nixon refers to Dr. Rutherford’s testimony that Nixon’s condition will “wax and wain,

probably never going away” as evidence of permanent injury. Dr. Rutherford’s statement, however,

refers to the effects of the neuroformenosis and osteoporosis, not the arthritic knee condition or rib

fractures. As noted above, Nixon cannot be compensated for her back, hip, or shoulder injuries

because she failed to prove to a degree of reasonable medical certainty that they were caused by the

fall. Nixon and her son testified that, as of the time of trial, she could not perform some of her prior




                                                   4
activities; their testimony does not establish that the limitations are permanent. Therefore, the

evidence is insufficient to support an award for permanent injuries in this case.

       Consequently, Nixon must be limited to recovery for the pain and suffering associated with

the rib fractures and arthritic knee and ankle conditions. The letter from Nixon’s original treating

physician, Dr. Fullerton, indicated that both of these injuries were resolved within four and one-half

months after the fall. Nixon did complain of pain in her ribs in June 1993, on her first visit to Dr.

Neely. However, after that, the record contains no further mention of rib, ankle, or knee pain.

Therefore, the evidence supports an award for only this five month period. We reduce the award of

compensatory damages to $30,000 including the $6500 of medical expenses.

       In sum, the evidence in this case does not support an award of damages for Nixon’s back,

hip, or shoulder conditions. The plaintiff presented sufficient evidence to support an award of

damages for the rib fractures and arthritic knee and ankle conditions. However, Nixon failed to

present sufficient evidence that these injuries were permanent. Therefore, Nixon’s recovery for these

injuries is limited to damages for the five-month period following the fall. We reduce the

compensatory damages to $30,000.

       The decision of the trial court is as affirmed as modified. Costs are taxed to Appellee, for

which execution may issue if necessary.




                                       HOLLY KIRBY LILLARD, J.

CONCUR:



W. FRANK CRAWFORD, P. J., W.S.



DAVID R. FARMER, J.




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