                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                  June 16, 2010 Session

                    GLENDA HAMPTON v.
        NORTHWEST TENNESSEE HUMAN RESOURCE AGENCY

               Direct Appeal from the Circuit Court for Carroll County
                      No. 08-CV-24     Donald E. Parrish, Judge


                 No. W2009-02668-COA-R3-CV - Filed July 13, 2010


       This is a personal injury case. The Appellant/Defendant’s employee backed a van into
a vehicle which the Appellee/Plaintiff was driving. Until the accident, the Plaintiff had not
had any problems with her right shoulder. The morning after the accident the Plaintiff had
pain and soreness in her shoulder. She was treated by three different orthopedic surgeons
and ultimately had arthroscopic right shoulder surgery. The parties stipulated to liability.
However, the Defendant disputed causation. A bench trial was held and the trial court found
that the accident caused the Plaintiff’s shoulder injury which necessitated the shoulder
surgery. Defendant appealed from the trial court’s judgment. We affirm.

  Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Affirmed.

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS,
P.J.,W.S., and D AVID R. F ARMER, J., joined.

Robert O. Binkley, Jr. and James V. Thompson, Jackson, Tennessee, for the appellant,
Northwest Tennessee Human Resource Agency.

Ricky L. Boren, Jackson, Tennessee, for the appellee, Glenda Hampton.

                                        OPINION

         This lawsuit stems from an automobile accident that occurred on April 24, 2007. On
that day, Appellee, Glenda Hampton (“Ms. Hampton”) was driving a Ford Taurus for her
employer, Tri-County Transportation. She was driving her passenger, Ms. Effie Rivers, to
a doctor’s appointment. Upon arriving at the doctor’s office, Ms. Hampton encountered
traffic congestion near the entrance. Ms. Hampton pulled behind a van and waited for the
traffic to clear at the entrance. While waiting, the van which they were parked behind, began
to back up. Appellant, Northwest Tennessee Human Resource Agency (“NTHRA”) owned
the van and it was being driven by Michael Ridgley. In backing up, the van collided with the
car driven by Ms. Hampton. It was a low speed collision and resulted in a cracked headlight
on Ms. Hampton’s car and a dent in the van’s rear bumper. Ms. Hampton saw the impending
collision and braced herself against the steering wheel. Prior to this accident, Ms. Hampton
had not had any problems with her right shoulder.

       Ms. Hampton did not have pain immediately after the accident. However, beginning
the next day, she had pain and soreness in her right shoulder which gradually worsened over
the next ten days. On May 4, 2007, she was seen by her family physician, Dr. Toby
Hampton. Dr. Hampton saw Ms. Hampton twice and provided her with pain medication
which did not relieve her pain. Ms. Hampton was then referred to Dr. Michael Cobb, an
orthopedic surgeon, by her worker’s compensation insurance carrier. Dr. Cobb saw her on
August 28, 2007 and ordered physical therapy. According to Ms. Hampton the therapy
would help some, but the pain would always come back. Dr. Cobb ordered an MRI which
was done on October 31, 2007. The MRI revealed a partial tear of the rotator cuff along with
degenerative changes and a possible labral tear of the shoulder socket. Dr. Cobb opined that
Ms. Hampton suffered from a shoulder strain. Ms. Hampton was also seen by Dr. Mike
Smigielski at the request of her worker’s compensation insurance carrier. Dr. Smigielski
diagnosed a muscle strain, opined that the car accident could not be the cause of more serious
shoulder conditions, and that a rotator cuff tear could become symptomatic by subsequent
trauma. During this treatment, Ms. Hampton was forced to quit her job with Tri-County
Transportation due to the pain in her shoulder.

        Ms. Hampton was then seen by Dr. Apurva Dalal on October 14, 2008 because her
pain had not improved. Dr. Dalal diagnosed her with a partial rotator cuff tear. He initially
gave her an injection of cortisone. This injection relieved her pain, however, it returned. On
March 25, 2009, Dr. Dalal performed an arthroscopic right shoulder surgery on Ms. Hampton
to repair the tear of the labrum and the rotator cuff, to excise the distal clavicle and to remove
the subacromial bursa. Dr. Dala opined that the car accident caused the shoulder injuries
which necessitated the treatment he provided.

        On April 22, 2008, Ms. Hampton filed a complaint against NWTHRA alleging
negligence.1 NWTHRA filed an answer on July 10, 2008. Prior to trial, the parties stipulated
to liability. Also, the parties stipulated that the medical expenses were reasonable and
necessary. However, NWTHRA disputed whether the shoulder surgery was causally related
to the accident.


       1
        Ms. Hampton also named the driver, Mr. Ridgely as a defendant. However, the claim against Mr.
Ridgely was dismissed on July 15, 2008.

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         A bench trial was held on November 20, 2009. Ms. Hampton was the only witness
to testify live at trial. The parties entered into evidence the depositions of Dr. Cobb, Dr.
Smigielski and Dr. Dalal. Also the parties entered into evidence Dr. Hampton’s medical
records, the final judgment and ruling in Effie Rivers v. Northwest TN Human Resource
Agency – the lawsuit brought by Ms. Hampton’s passenger, Ms. Hampton’s medical expense
lists, a letter from Ms. Hampton’s current employer detailing her earnings, a life expectancy
table, copies of lawsuits filed against Dr. Cobb and Dr. Smigielski by Ms. Hampton’s
attorneys, and transcripts of the testimony of the van driver and another witness from the
Rivers trial.

         Following the conclusion of proof, the trial court rendered judgment in favor of Ms.
Hampton and awarded her damages in the amount of $102,552.40. The trial court made
several specific findings of credibility. First, the trial court found Dr. Cobb not to be credible
and that his testimony evidenced bias. The trial court also noted that it accorded Dr.
Smigielski’s testimony less weight than the opinions Dr. Dalal. Finally, the trial court found
Ms. Hampton to be “a credible historian and a credible witness.” The trial court found that
Ms. Hampton had no shoulder symptoms prior to the accident and had significant symptoms
after the accident. The trial court further found that “it is likely some arthritic changes were
present before the accident,...[but that] the trauma of the accident caused them to become
symptomatic and later to require surgery.” The trial court then found that Ms. Hampton had
a thirteen percent impairment to her body as a whole and permanent physical restrictions
which affect her daily activities. The trial court also found that her injury will affect future
employment. Based on its finding that the surgery was causally related to the accident, the
trial court awarded Ms. Hampton $50,552.40 in medical expenses which the parties had
stipulated to. The trial court also awarded Ms. Hampton $20,000 for past and future pain and
suffering; $20,000 for permanent disability; $2,000 for loss of the pleasures and enjoyments
of life; and $10,000 for lost wages and loss of earning capacity. A final judgment reflecting
these decisions was entered on December 2, 2009.

      NTHRA filed a notice of appeal on December 16, 2009. It raises two issues for our
review:

               1.     Whether the April 24, 2007, accident caused a shoulder
                      joint pathology requiring surgery?
               2.     Whether the damage award is excessive?

                                     Standard of Review

      Because this case was tried by the court 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

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court. Unless the evidence preponderates against the findings, we must affirm, absent error
of law. See Tenn. R. App. P. 13(d). With respect to the trial court's conclusions on matters
of law however, our review is de novo with no presumption of correctness. See Bowden v.
Ward, 275 S.W.3d 913, 916 (Tenn.2000); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174
(Tenn. 1996); Tenn. R. App. P. 13 (d). Furthermore, when the resolution of the issues in a
case depends upon the truthfulness of witnesses, the trial judge who has the opportunity to
observe the witnesses and their manner and demeanor while testifying is in a far better
position than this Court to decide those issues. See McCaleb v. Saturn Corp., 910 S.W.2d
412, 415 (Tenn. 1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App.1997).
The weight, faith, and credit to be given to any witness' testimony lies, in the first instance,
with the trier of fact, and the credibility accorded will be given great weight by the appellate
court. Id.; see also Walton v. Young, 950 S.W.2d 956, 959 (Tenn.1997). "If the trial court's
factual determinations are based on its assessment of witness credibility, this Court will not
reevaluate that assessment absent clear and convincing evidence to the contrary." Heffington
v. Heffington, No. M2009-00434-COA-R3-CV, 2010 WL 623629 (Tenn. Ct. App. Feb. 19,
2010). However, “[w]hen the issues involve expert medical testimony that is contained in the
record by deposition, determination of the weight and credibility of the evidence necessarily
must be drawn from the contents of the depositions, and the reviewing court may draw its
own conclusions with regard to those issues.” Foreman v. Automatic Sys., Inc., 272 S.W.3d
560, 571 (Tenn. 2008)(citing Orrick v. Bestway Trucking Inc., 184 S.W.3d 211, 216 (Tenn.
2006)).

                                           Analysis
                                           Causation

        A negligence claim requires proof of the following elements: (1) a duty of care owed
by the defendant to the plaintiff; (2) conduct by the defendant falling below the standard of
care that amounts to a breach of that duty, (3) an injury or loss; (4) causation in fact; and (5)
proximate or legal cause. Hale v. Ostrow, 166 S.W.3d 713, 716 (Tenn. 2005); Coln v. City
of Savannah, 966 S.W.2d 34, 39 (Tenn. 1998). In this case, the only disputed element is
causation. “No claim for negligence can succeed in the absence of” proof of causation.
Kilpatrick v. Bryant, 868 S.w.2d 594, 598 (Tenn. 1993). “Causation, or cause in fact, means
that the injury or harm would not have occurred ‘but for’ the defendant’s negligent conduct.”
Id. (citations omitted). Causation is a question of fact, which we review with a presumption
of correctness and will not overturn the trial court’s finding unless the evidence
preponderates against it. Haines v. Henry County. Bd. Of Education, No. W2008-02532-
COA-R3-CV, 2010 WL 457502, at *7 (Tenn. Ct. App. Feb. 11, 2010)(citations omitted).




                                               -4-
       At trial, the only live testimony received by the trial court was from Ms. Hampton.
Ms. Hampton testified that she did not have any problems with her shoulder prior to the
accident. She testified that the morning after the accident, her shoulder was sore and the pain
gradually got worse over the next ten days. Moreover, Ms. Hampton testified that the
soreness in her shoulder continued everyday until the surgery and that the surgery improved
her pain, motion and strength. On cross examination, Ms. Hampton admitted that she said
she was fine immediately following the accident. She also admitted that she did not have
pain in her shoulder everyday, but explained that the tenderness and soreness were present
everyday from the accident until the surgery.


       The trial court found Ms. Hampton to be a credible witness. We have reviewed the
record and we do not find clear and convincing evidence to contradict the trial court’s
findings. Heffington v. Heffington, No. M2009-00434-COA-R3-CV, 2010 WL 623629
(Tenn. Ct. App. Feb. 19, 2010) Accordingly, we affirm the trial court’s findings that Ms.
Hampton did not have problems with her shoulder prior to the accident, that the problems
continued until she had shoulder surgery, and that the surgery alleviated the problems she
was having.


         The trial court also reviewed the deposition testimony of Ms. Hampton’s treating
physicians. Because the doctors testified by depositions, we may make our own findings of
credibility. Foreman v. Automatic Sys., Inc., 272 S.W.3d 560, 571 (Tenn. 2008). Dr. Cobb,
the first orthopedic surgeon that treated Ms. Hampton, testified that he first saw her on
August 27, 2007. He testified that at this time Ms. Hampton had pain in her shoulder and
neck, along with pain when moving her shoulder, but that she had no limitation in moving
her shoulder and no sign of rotator cuff weakness or instability. Dr. Cobb testified that he
saw Ms. Hampton again one month later, on September 26, 2007. According to his
testimony, Ms. Hampton still had pain in her shoulder, but had full motion. He testified that
at this visit Ms. Hampton would “guard intermittently” and explained that this meant she was
probably exaggerating her symptoms. Dr. Cobb testified that he saw Ms. Hampton again on
October 25, 2007 and testified that at this visit Ms. Hampton still had pain and “guarded
motion.” At this visit, Dr. Cobb ordered an MRI. Dr. Cobb testified that the MRI was
performed on October 31, 2007 and showed a partial tear of the rotator cuff along with
degenerative changes and a possible labral tear of the shoulder socket. However, Dr. Cobb
explained that a rotator cuff tear was common in people over the age of thirty or forty, and
that there was no clinical correlation to the finding of a torn rotator cuff. Dr. Cobb further
testified that the accident may have caused a mild sprain, but there was no way it resulted in
a rotator cuff tear.




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        Then trial court found Dr. Cobb not to be credible. When asked about his initial
thoughts on Ms. Hampton, Dr. Cobb referred to the accident as the “so-called accident.” Dr.
Cobb also accused Ms. Hampton of exaggerating her symptoms. He then referred to the tear
of the rotator cuff as found by the radiologist in the MRI, as a “so-called tear.” Dr. Cobb also
testified that Ms. Hampton’s counsel’s clientele was more likely to fake their symptoms.
Moreover, at the time of his deposition, Dr. Cobb was being sued by another client of Ms.
Hampton’s counsel. We have made our own independent review of the testimony of Dr.
Cobb. Considering his testimony, along with the fact that Ms. Hampton consistently
complained of pain and soreness in her shoulder, and that a rotator cuff tear was found and
surgically repaired, we believe that Dr. Dalal, having performed the surgery, is in a better
position to assess her condition.


        Dr. Smigielski, another of Ms. Hampton’s treating orthopedic surgeons, also testified
by deposition. He testified that he saw Ms. Hampton on March 3, 2008, and that at that time,
Ms. Hampton was having pain some days and not others, along with intermittent numbness
and tingling, and that she had normal motion but that she was tearful when she moved her
shoulder. He testified that the October 2007 MRI report indicated a partial tear to the rotator
cuff, but explained that fifty percent of the people Ms. Hampton’s age will have some tears.
Dr. Smigielski testified that the 2008 MRI was similar to the 2007 MRI. In his opinion,
surgery would not have been beneficial to Ms. Hampton at the time he saw her. Dr.
Smigielski testified that the accident probably caused a muscle strain. However, he did admit
that a preexisting partial tear could become symptomatic with trauma. Further, he admitted
that a preexisting rotator cuff tear or a labral tear could be aggravated by an accident like Ms.
Hampton’s.


        Finally, Dr. Dalal, another treating orthopedic surgeon and the surgeon that performed
the surgery, testified by deposition. He testified twice through deposition, once before
surgery and once after surgery. Prior to the surgery, Dr. Dalal testified that he had seen Ms.
Hampton on October 14, 2008 and that she had stated she had pain in her shoulder. He
testified that the 2007 MRI showed a torn rotator cuff and some arthritis. Dr. Dalal testified
that he treated Ms. Hampton on October 14, 2008 by giving her a shot of cortisone. He also
ordered another MRI. He further testified that he saw her two weeks later and that her pain
and mobility were better, but that more likely than not, she would need surgery. Dr. Dalal
testified that a rotator cuff tear and a torn labrum were permanent conditions and that he
instructed Ms. Hampton to avoid lifting, pulling, pushing and overhead work. As of
November 11, 2008, in Dr. Dalal’s opinion all of Ms. Hampton’s problems began after the
accident, and he believed that somehow during the accident, she jerked her shoulder causing
the rotator cuff and labrum tears.


                                               -6-
        Dr. Dalal’s deposition was taken again on October 26, 2009, after the surgery. At this
time, Dr. Dalal testified that he saw Ms. Hampton again on January 26, 2009 and that Ms.
Hampton could not lift her arm and was in alot of pain. During this visit, Ms. Hampton
expressed a desire to try to surgically repair the shoulder as Dr. Dalal had suggested. Dr.
Dalal testified that he performed a right shoulder arthoscopy on March 25, 2009 and that
during this surgery he found a significant tear of the labrum and a tear in the rotator cuff. He
testified that he repaired the tear of the labrum and the rotator cuff, excised the distal clavicle
and removed the subacromial bursa. Dr. Dalal testified that Ms. Hampton is doing extremely
well post surgery, and that her pain, motion and strength have improved. In his opinion, Dr.
Dalal stated that he believed the original injury resulted in the need for shoulder surgery.


       After reviewing the record as a whole we find that the evidence does not preponderate
against the trial court’s finding that the April 24, 2007 accident was causally related to Ms.
Hampton’s ensuing shoulder surgery and associated expenses.


                                            Damages


       NTHRA also contends that the trial court’s award of damages is excessive. After
finding the shoulder surgery was causally related to the accident, the trial court awarded Ms.
Hampton damages in the amount of $102,552.40. This was comprised of $50,552.40 for
medical expenses as stipulated by the parties, $20,000.00 for past and future pain and
suffering, $20,000.00 for permanent disability, $2,000.00 for loss of the pleasures and
enjoyments of life, and $10,000.00 for lost wages and lost earning capacity.


       "Whether the trial court has utilized the proper measure of damages is a question of
law that we review de novo." Memphis Light, Gas & Water Div. v. Starkey, 244 S.W.3d
344, 352 (Tenn. Ct. App. 2007) (quoting Beaty v. McGraw, 15 S.W.3d 819, 829 (Tenn. Ct.
App. 1998); see also Taylor v. Fezell, 158 S.W.3d 352, 357 (Tenn. 2005). The amount of
damages awarded, however, is a question of fact so long as the amount awarded is within the
limits set by the law. Id. Thus, in a non-jury case such as this, we review the amount of
damages awarded by the trial court with a presumption of correctness, unless the
preponderance of the evidence demonstrates otherwise. See Tenn. R. App. P. 13(d).
“[D]amages need not be proven with mathematical precision, [but] the proof of damages
must be concrete and definite enough to enable the trier-of-fact to make a reasonable
assessment of the claimant’s damages.” Henley v. Amacher, No. M1999-02799-COA-R3-
CV, 2002 WL 100402, at *11 (Tenn. Ct. App. Jan. 28, 2002). Pain and suffering damages

                                                -7-
compensate a person for past and future “physical or mental discomfort caused by an injury”
including anguish, distress, fear, humiliation, grief, shame, or worry.” Overstreet v. Shoney’s
Inc., 4 S.W.3d 694, 715 (Tenn. Ct. App. 1999). Damages for permanent injury compensate
a person for the inconvenience or loss of physical vigor which the person must endure for the
rest of his life due to an injury from which he cannot recover. Id. “Damages for lost earning
capacity are measured not by the amount of the plaintiff’s lost wages but by the extent of
impairment to the plaintiff’s ability to earn a living.” Graves v. Jeter, No. W2003-02871-
COA-RS-CV, 2004 WL 3008871, at *4 (Tenn. Ct. App. Oct. 11, 2004). “Damages for loss
of enjoyment of life compensate the injured person for the limitations placed on his or her
ability to enjoy the pleasures and amenities of life.” Overstreet v. Shoney’s Inc., 4 S.W.3d
at 715-16.


        We have reviewed the record and find that the trial court’s award of damages is within
the range of reasonableness. As to the damages for pain and suffering, Ms. Hampton
testified that she had pain and soreness in her shoulder from the day after the accident until
the surgery; in other words for almost two years. She testified that while the surgery did
alleviate most of the pain, she still had some pain. In regard to permanent disability, Dr.
Dalal opined that Ms. Hampton had a permanent medical impairment rating of twenty-two
percent to the upper extremity or thirteen percent to the body as a whole. Dr. Dalal testified
that in the future, Ms. Hampton would be restricted from lifting weight over twenty-five
pounds and from lifting weight over ten pounds overhead. Also, according to Dr. Dalal, Ms.
Hamptom must avoid repetitive pushing or pulling, and manual labor. Ms. Hampton was
fifty three years old at the time of trial, has a limited education and would never be able to
work in a job which required her to use her right arm for eight hours. In the past Ms.
Hampton had worked in a factory and in a job assisting the elderly and disabled, neither of
which she could do with her shoulder now. Regarding the award for loss of pleasures and
enjoyment of life, Ms. Hampton testified that prior to the surgery she was extremely limited
in what she could do. She admitted that she could still fish, but could not do much
gardening, two things which she enjoyed doing prior to the accident. She testified that she
can do some yard work, but she must limit herself and cannot push a lawnmower. As to lost
wages, Ms. Hampton testified that while she was being treated she was forced to quit her job
due to the pain in her shoulder. Since being forced to leave her job, she has not been able to
obtain full-time employment. Further, because of her injuries, her employment opportunities
in the future are limited. Considering the record as a whole we do not find that the evidence
preponderates against the trial court’s award of damages. Consequently, we affirm the trial
court’s finding that Ms. Hampton was entitled to $102,552.40 in damages.

                                         Conclusion



                                              -8-
      The decision of the trial court is affirmed. Costs of this appeal are taxed to the
Appellant, Northwest Tennessee Human Resource Agency and its surety for which execution
may issue if necessary.




                                                _________________________________
                                                J. STEVEN STAFFORD, JUDGE




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