                    IN THE COURT OF APPEALS OF TENNESSEE
                         WESTERN SECTION AT JACKSON


DEBORAH TUGGLE,                        )
                                       )
              Plaintiff/Appellee,      ) Shelby Circuit No. 62811 T.D.
                                       )
VS.                                    ) Appeal No. 02A01-9606-CV-00147
                                       )
SHELBY COUNTY GOVERNMENT,
and JAMES BROWN, In His Official
Capacity as Executive Director of
                                       )
                                       )
                                       )
                                             FILED
OAKVILLE HEALTH CARE CENTER            )
                                               May 20, 1997
                                       )
              Defendants/Appellants.   )
                                            Cecil Crowson, Jr.
                                              Appellate C ourt Clerk

             APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY
                         AT MEMPHIS, TENNESSEE
               THE HONORABLE GEORGE H. BROWN, JR., JUDGE




CARROLL C. JOHNSON
Memphis, Tennessee
Attorney for Defendants/Appellants


JOEDAE L. JENKINS
Memphis, Tennessee
Attorney for Plaintiff/Appellee




AFFIRMED




                                                              ALAN E. HIGHERS, J.



CONCUR:

DAVID R. FARMER, J.

HOLLY KIRBY LILLARD, J.
    In this workers compensation case, Deborah Tuggle (“Plaintiff”) seeks benefits for
injuries sustained while weighing a patient at the Oakville Health Care Center, an agency

of Shelby County Government (“Defendant”). 1              The trial court awarded the Plaintiff

$41,463.80 based upon a forty-five percent permanent partial disability rating to the body

as a whole; $4,895.29 based upon a temporary total disability of 21.2 weeks; $1,329.00

for past medical expenses; and all future medical expenses reasonably incurred by Plaintiff

for treatment of her cervical and lumbar strain and bilateral carpal tunnel syndrome. The

Defendants appeal the judgment of the trial court arguing that the Plaintiff did not sustain

any permanent disability which arose out of and in the course of her employment; and,

alternatively, if the Plaintiff did sustain any permanent disability arising out of and in the

course of her employment, then the trial court’s award of damages was excessive. For the

reasons stated hereafter, we affirm the judgment of the trial court.



                                               FACTS



       On January 15, 1985, Plaintiff began working at the Oakville Health Care Center as

a certified nursing assistant. As a nursing assistant, Plaintiff dealt with comatose and

handicapped patients as well as with patients who had suffered heart attacks and strokes.

Plaintiff’s job entailed feeding, bathing, turning, weighing and transporting the patients.



       While weighing a patient on July 31, 1993, the Plaintiff injured her shoulder, arm,

neck and back when attempting to keep the patient from falling. Plaintiff immediately

reported the incident to the nursing supervisor and complained of pain in her back, neck

and shoulders. Plaintiff was then sent by her employer to the emergency room at

Eastwood Hospital .



       After examining the Plaintiff, a doctor at Eastwood Hospital gave her medication and

told her to call the Memphis Orthopedic Group for further treatment if her condition had not

improved by the following Monday. Not feeling any better by Monday, August 5, 1993,

Plaintiff called the Memphis Orthopedic Group and scheduled an appointment with Dr.

       1
        Shelby Co unty is not subject to the Tennessee W orkers Compensation Act, but does com pen sate
em ployees injured on the job pursuant to Co unty Po licy.

                                                  2
Ragsdale. Complaining of numbness in her shoulder, arm and throughout the right and

left sides of her body, Dr. Ragsdale examined the Plaintiff, prescribed muscle relaxers and

sent her to therapy.



       In August 1993, Plaintiff began visiting physicians at HealthSouth Sports Medicine

and Rehabilitation Center (“HealthSouth”). Plaintiff’s HealthSouth medical records reveal

as follows: Plaintiff complained of constant pain in her right shoulder and radiating pain

and numbness in her right hand and third digit on August 6, 1993. On August 12, 1993,

Plaintiff stated that her shoulder pain was “not as intense as before and is coming and

going now instead of constant.” On August 17, 1993, Plaintiff stated that “she feels pain

in shoulder joint today and arm feels heavy.” On August 23, 24, 30 and 31 1993, Plaintiff

complained of pain. On September 9, 1993, Plaintiff complained of numbness and pain

in her right shoulder and arm. Likewise, Plaintiff complained of numbness in her right

shoulder and arm and pain in her right shoulder on September 14, 1993.



       Plaintiff received a letter from her employer dated September 8, 1993 informing her

that an appointment had been scheduled for her on September 14, 1993 with Dr. Mark

Harriman, an orthopedic surgeon. After performing a physical examination of the Plaintiff

on September 14, 1993, Dr. Harriman found nothing wrong with her and recommended

that she return to work. Plaintiff returned to Dr. Harriman on September 21 and 24, 1993;

and Dr. Harriman again advised her to return to work.



       Following Dr. Harriman’s advice, the Plaintiff returned to work on September 27,

1993. While turning a patient on her first day back to work, Plaintiff felt pain in her arms,

back and neck and reported the pain to the nursing supervisor. Unable to work, Plaintiff

went to Eastwood Hospital for treatment and was told that the hospital could not treat her

at that time due to her employer’s refusal to pay.



       Without first talking to her employer about alternative treatment for her injuries, the

Plaintiff went to the Regional Medical Center at Memphis (“the Med”) for treatment on



                                              3
September 28, 1993, complaining of pain in her back, neck and right hand and numbness

in her arms and shoulders. After undergoing an electromyogram test, doctors at the Med

diagnosed Plaintiff as having bilateral carpal tunnel syndrome.



       On October 25, 1993, Plaintiff returned to the Med for neurology treatment and was

seen by Dr. Iqbal. After an examination, Dr. Iqbal gave the Plaintiff a written statement

authorizing her to return to work but limiting her work to non-strenuous labor.



       Plaintiff was thereafter treated at the Med on November 1 and November 15, 1993,

and diagnostic tests were performed on the Plaintiff on November 23 and December 6,

1993. Plaintiff also underwent physical therapy at the Med and was instructed to do certain

exercises for her hands. On December 7, 13, and 29, 1993, Plaintiff received follow-up

care. Plaintiff’s last visit to the Med was in April 1994.



       In January 1994, Plaintiff returned to Dr. Harriman for an updated evaluation of her

condition. Because Plaintiff had been previously diagnosed with bilateral carpal tunnel

syndrome at the Med, Dr. Harriman did not examine the Plaintiff for carpal tunnel

difficulties. Rather, Dr. Harriman’s examination was limited to Plaintiff’s neck and shoulder

problems. After taking x-rays of the Plaintiff’s shoulder, Dr. Harriman found no physical

problems and recommended that she return to work.



       After receiving Dr. Harriman’s written statement recommending that Plaintiff return

to “light duty” work, Plaintiff returned to work as a health aid on March 14, 1994. November

18, 1994, the Defendant told Plaintiff that she had been placed on a medical leave of

absence without pay. In July 1995, Plaintiff received a letter from the Defendant stating

that her position at Oakville Health Care Center had been terminated because of job

abandonment.



       On June 6, 1994, Plaintiff sought the assistance of Dr. Rommel Childress, an

orthopedic surgeon. Plaintiff came to Dr. Childress complaining of pain in the neck, back,



                                              4
bilateral wrist and hand. Dr. Childress’ evaluation of the Plaintiff revealed that she had a

“history of acute cervical and lumbar spine strain and carpal tunnel syndrome with some

aggravation with work activities.” Upon prescribing medications for the Plaintiff and advising

her to return to him in three weeks for follow-up care, Dr. Childress advised the Plaintiff to

return to light duty work activities.



       Complaining of pain in the neck, back, wrist, hand and right arm and numbness and

tingling in both hands, Plaintiff returned to Dr. Childress for follow-up care on June 23,

1994; August 8, 1994; August 29, 1994; September 29, 1994; and on November 4, 1994.

On November 4, 1994, Dr. Childress gave Plaintiff a note recommending that she return

to work but limiting her work to light-duty tasks.



       Dr. Childress diagnosed the Plaintiff as having acute and chronic cervical and

lumbar spine strain as well as carpal tunnel syndrome. Based upon Plaintiff’s absence

of pain in the back, neck, arm, hand and wrist before the July 31, 1993 work accident, Dr.

Childress opined that it was the July 31, 1993 occurrence which precipitated the Plaintiff’s

neck, back and carpal tunnel problems. Dr. Childress further opined that Plaintiff’s neck

and back difficulties along with her carpal tunnel syndrome were aggravated by her return

to work.



       Relying upon the American Medical Association (“AMA”) guidelines, Dr. Childress

assigned a sixteen percent medical impairment rating to Plaintiff’s body as a whole due to

her injuries. In addition, because of Plaintiff’s carpal tunnel condition, Dr. Childress

testified that the Plaintiff would require future medical care and treatment.



       On February 10, 1995, Plaintiff returned to Dr. Harriman at the request of the

Defendant. Upon examining the Plaintiff for carpal tunnel syndrome, Dr. Harriman’s tests

revealed no signs of carpal tunnel difficulties. However, assuming that the Plaintiff did

have carpal tunnel syndrome as the Med had previously diagnosed, Dr. Harriman opined

that Plaintiff’s carpal tunnel condition could not have developed as a result of her July 31,



                                              5
1993 accident at work. Dr. Harriman found no permanent impairment upon his examination

of the Plaintiff and again recommended that she return to work.



       At the request of the Defendant, Dr. Joseph Boals, an orthopedic surgeon,

evaluated the Plaintiff on November 28, 1995. After evaluating her history, performing a

physical examination, and taking x-rays, Dr. Boals determined that Plaintiff was suffering

from bilateral carpal tunnel syndrome. Based upon the AMA guidelines, Dr. Boals attributed

a twelve percent medical impairment rating to Plaintiff’s body as a whole due to her carpal

tunnel condition. Dr. Boals recommended surgery for Plaintiff’s carpal tunnel condition but

stated that Plaintiff’s medical impairment rating would probably not improve after the

surgery.



       Dr. Boals further testified that if Plaintiff’s July 31, 1993 accident caused Plaintiff’s

bilateral carpal tunnel problems, Plaintiff should have complained about numbness, tingling

and/or pain in her hands within three to six weeks of the July 31, 1993 occurrence.



       Although Plaintiff complained of acute cervical and lumbar strain and shoulder

contusion, Dr. Boals found no objective findings that could support Plaintiff’s subjective

complaints. Dr. Boals found no impairment to Plaintiff’s back or shoulder.



       Following the advice of her attorney, Plaintiff visited Dr. Greg Cates, a licensed

health and rehabilitation counselor, on January 25, 1996. Based upon a review of the

depositions of Dr. Harriman, Dr. Childress and Dr. Boals and upon his own assessment of

the Plaintiff, Dr. Cates opined that Plaintiff will lose approximately thirty-five percent of her

vocational potential if she continues to be limited to light-duty work due to her injuries.



       After hearing the proof which consisted of the foregoing facts, the trial court made

the following findings of fact. The Plaintiff suffered a work-related injury on or about July

1993 and reported that injury to her employer. Based upon the deposition testimony of Dr.

Childress, the Plaintiff’s July 1993 accident triggered Plaintiff’s carpal tunnel syndrome.



                                               6
As a result of her accident, Plaintiff is no longer able to return to her former position as a

nursing assistant which requires the lifting and turning of patients.



                                            LAW



       The two issues before this Court are:

       1) Whether the Plaintiff sustained any permanent disability or impairment which

arose out of and in the course of her employment with the Defendant; and

       2) Whether the trial court’s award to the Plaintiff was excessive.



       Our standard of review in workers’ compensation cases is de novo upon the record

of the trial court, accompanied by a presumption of the correctness of the factual findings,

unless the preponderance of the evidence is otherwise. T.C.A. § 50-6-225(e)(2) (Supp.

1996); Spencer v. Towson Moving and Storage, Inc., 922 S.W.2d 508, 509 (Tenn. 1996);

Fink v. Caudle, 856 S.W.2d 952, 958 (Tenn. 1993). This standard of review requires an

in depth examination into the trial court’s factual findings and conclusions. Galloway v.

Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991); Orman v. Williams Sonoma,

Inc., 803 S.W.2d 672, 675 (Tenn. 1991). We, therefore, are not bound by the trial court’s

factual findings; instead, we conduct an independent examination to determine where the

preponderance of the evidence lies. Galloway , 822 S.W.2d at 586; Corcoran v. Foster

Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988).



       Defendant argues that the Plaintiff did not sustain any permanent disability or

impairment which arose out of and in the course of her employment with the Defendant.

However, Dr. Childress assigned a sixteen percent medical impairment rating to Plaintiff’s

body as a whole due to Plaintiff’s neck, back, shoulder and carpal tunnel problems. Dr.

Boals attributed a twelve percent medical impairment rating to Plaintiff’s body as a whole

due to her carpal tunnel condition but found no permanent impairment to Plaintiff’s back

or shoulder.    Dr. Harriman found no permanent injuries or impairments upon his

examination of the Plaintiff.



                                              7
       In accordance with Dr. Boals testimony that Plaintiff should have complained about

numbness, tingling or pain in her hands within three to six weeks of the July 31, 1993

accident if the accident was the cause of Plaintiff’s carpal tunnel condition, Plaintiff began

complaining of radiating pain and numbness in her right hand and third digit on August 6,

1993, one week after the July 31, 1993 accident at work. Moreover, medical records

indicate that Plaintiff continually sought the care and treatment of medical doctors after the

July 31, 1993 occurrence for pain in her neck, back, shoulders, arms and hands. Thus,

there is substantial evidence in the record indicating that Plaintiff sustained permanent

disability or impairment which arose out of and in the course of her employment with the

Defendant. We, therefore, agree with the trial court’s finding that Plaintiff sustained

permanent disabilities due to the July 31, 1993 accident at work.



       The Defendant alternatively argues that the trial court’s award to the Plaintiff was

excessive. Tenn. Code Ann. § 50-6-241(b) provides that a permanent partial disability

award in a workers compensation case shall be the product of a medical impairment rating

and a statutory multiplier. In cases where a pre-injury employer does not return an

employee to employment at a wage equal to or greater than the wage the employee was

receiving at the time of injury, the employee may receive a maximum permanent partial

disability award of six times the medical impairment rating. T.C.A. § 50-6-241(b) (Supp.

1996). Based upon Dr. Boals twelve percent medical impairment rating and upon Dr.

Childress’ sixteen percent medical impairment rating, the trial court’s determination that

Plaintiff sustained a forty-five percent permanent partial disability to the body as a whole

was well within the trial court’s discretion and was supported by the evidence at trial. We,

therefore, conclude that the trial court did not err in its award of permanent partial disability

to the Plaintiff.



       Plaintiff returned to work on September 27, 1993 upon the advice of the Defendant’s

physician, Dr. Harriman. Again experiencing pain in her arms, back and neck while turning

a patient on September 27, 1993, the Plaintiff left work, sought medical treatment and did

not return to work until March 14, 1994. We, therefore, agree with the trial court’s ruling



                                               8
that the Plaintiff is entitled to temporary total disability from September 27, 1993 through

March 14, 1994.



       Moreover, based upon Dr. Childress’ diagnosis of the Plaintiff’s acute and chronic

cervical and lumbar spine strain and upon Dr. Childress’ testimony that the Plaintiff will

incur future medical expenses due to her carpal tunnel condition, the trial court did not err

in its decision to award the Plaintiff all future medical expenses reasonably incurred by her

for treatment of her cervical and lumbar strain and bilateral carpal tunnel syndrome.



       The application of Plaintiff to declare this a frivolous appeal is respectfully denied.



       The judgment of the trial court is hereby affirmed. Costs on appeal are taxed to

Appellant for which execution may issue if necessary.




                                                         HIGHERS, J.

CONCUR:



FARMER, J.



LILLARD, J.




                                              9
