Clarence Trosper v. Armstrong Wood Products, Inc.

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs September 11, 2008

CLARENCE TROSPER v. ARMSTRONG WOOD PRODUCTS, INC.

Appeal by Permission from the

Supreme Court Special Workers’ Compensation Appeals Panel

Chancery Court for Scott County

No. 9446 Billy Joe White, Chancellor

No. E2007-00816-SC-WCM-WC - Filed December 30, 2008

Following surgeries on both of his hands, the employee filed suit seeking workers’ compensation

benefits on the theory that the repetitive nature of his work in the employer’s flooring business

exacerbated a pre-existing, but dormant, arthritic condition. The trial court found that the

employee’s work duties had worsened his osteoarthritis and awarded 40% permanent partial

disability to each hand. The trial court also awarded temporary total disability benefits for the time

during which the employee was recuperating from the surgeries and unable to work. The Special

Workers’ Compensation Appeals Panel reversed the trial court, holding that the employee’s

condition was neither caused nor aggravated by the work he performed for the employer. Because

the evidence does not preponderate against the trial court’s finding of causation and the award of

benefits, we reverse the decision of the Appeals Panel and affirm the judgment of the trial court.

Tenn. Code Ann. § 50-6-225(e)(5)(B); Judgment of the Special Workers’ Compensation

Appeals Panel Reversed

GARY R. WADE, J., delivered the opinion of the court, in which JANICE M. HOLDER , C.J., CORNELIA

A. CLARK, J., and FRANK F. DROWOTA , III, Sp.J., joined. WILLIAM C. KOCH , JR., J., dissenting.

Linda J. Hamilton Mowles, Knoxville, Tennessee, for the appellee, Armstrong Wood Products.

C. Patrick Sexton, Oneida, Tennessee, for the appellant, Clarence Trosper.

OPINION

Facts and Procedural History

Clarence Trosper (“Employee”), age sixty-four at the time of trial, holds a Graduate

Equivalence Diploma and earned a welding certificate from a trade school. His work history

includes three years of military service, nine years employment as a press operator making springs

for mattresses, and twenty years as a welder for a coal mining business.

In 1993, the Employee accepted employment with Armstrong Wood Products (“Employer”),

a manufacturer of flooring products. For the first four years of his tenure there, the Employee

operated sanding and sawing equipment inside the plant. In 1997, he was assigned to work outdoors,

removing heavy boards by hand rapidly and continuously from a conveyor, sorting them, and then

stacking them by grade. The boards ranged in size from sixteen to twenty feet in length and six to

fourteen inches wide. In his new assignment, the Employee, who had never before experienced any

problems with either hand, developed intense pain in both of his hands, particularly at the base of

his thumbs near his wrist. He reported the occurrence to his supervisor and received medical

treatment for the pain, including an injection near the base of one of his thumbs. The symptoms

worsened after the injection.

When the Employee asked to return to a position inside the plant which involved less stress

on his hands, the Employer agreed, transferring him to a job which entailed moving and stacking

veneer. The Employee performed his new assignments capably and did not experience any further

difficulty until 2000 or 2001, when he was transferred to a position which required him to lift forty-

five to seventy pound buckets to shoulder level and then pour the chemical contents into a hopper.

As he used his thumbs to grasp the wire handles on the buckets, he experienced a “real sharp pain”

during each lift. His new responsibilities also required filling approximately 100 empty tubes an

hour with wood filler and then labeling and packaging the tubes.

In 2004, after returning to work from a knee operation unrelated to this claim, the Employee

again experienced pain in his hands from lifting the buckets of chemicals. He reported this problem

to his supervisor and asked if the buckets could be made lighter. The weight of the buckets was not

reduced, and the Employer instructed the Employee to consult with Dr. Cletus McMahon, the

physician who had performed the knee surgery. Dr. McMahon diagnosed the Employee with

bilateral carpometacarpal osteoarthritis, a joint disease characterized by the degeneration of cartilage

in the joints of the hands, specifically at the base of the thumb near the wrist.1 Dr. McMahon

performed a surgical fusion of the joint at the base of the Employee’s thumb in his right hand on

October 29, 2004. When the Employee returned to the same position, however, he experienced pain

in his left hand, necessitating a surgical fusion of the affected joint in June of 2005. Afterward, the

Employee retired, having completed twelve years of service to the Employer.

At trial, the Employee testified that he could no longer fully extend his thumbs, had trouble

making a pinching motion, had diminished grip strength, and had continuous pain in his hands. He

also stated that his condition required that he forego some of his hobbies, such as hunting, fishing,

and gardening. He could not use a weed eater or a chain saw as he had done in the past.

After the Employee’s second surgery, Dr. William Kennedy, an orthopedic surgeon,

performed an independent medical evaluation on the Employee. The Employee informed Dr.

Kennedy that he began to experience pain, numbness, and tingling in both of his hands for the first

1

Osteoarthritis, a fairly common type of arthritis, “is accompanied by pain and stiffness” in the affected joint,

“particularly after prolonged activity.” Dorland’s Illustrated Medical Dictionary 1197 (27 th ed. 1988).

2

time in 1997 and 1998 while sorting and stacking lumber for the Employer. He reported that since

his 2004 and 2005 surgeries, he has continued to have pain in both thumbs and complained that he

had not regained normal strength or range of motion in either hand. Furthermore, the Employee

experienced difficulty gripping and maneuvering small objects while doing ordinary tasks, such as

brushing his teeth, combing his hair, bathing, or preparing food.

Based upon the examination, which included a review of x-rays taken before and after the

surgeries, Dr. Kennedy concluded in his deposition that the Employee had severe osteoarthritis in

both of his thumbs. According to Dr. Kennedy, the Employee’s arthritic condition “more likely than

not . . . existed as a disease process” prior to his 1997 work stacking lumber, although the condition

was “dormant” until he undertook those job responsibilities. While conceding that repetitive activity

is not a cause of osteoarthritis itself, it was his opinion that the “cumulative trauma” of the

Employee’s work duties aroused the condition “from dormancy into a regularly painful reality.” Dr.

Kennedy further opined that the nature of the Employee’s job “permanently aggravated and advanced

[the] pre-existing, underlying carpometacarpal osteoarthritis in both of his thumbs and caused the

painful instability of those joints which ultimately necessitated” the surgeries in 2004 and 2005. It

was also his opinion that the “cumulative trauma” of the Employee’s work made the surgeries

necessary and the osteoarthritis “would not have been advanced or aggravated to the extent that it

was” but for his work activities. When asked what he meant by “aggravated,” Dr. Kennedy

responded that the Employee’s duties “caused a . . . change in the biomechanics of the thumb by

gradually stretching and loosening the ligaments that hold the base of the thumb in proper position,

and by gradually and increasingly damaging, disrupting, and thinning” the cartilage between the

bones.

Dr. Kennedy, whose testimony was extensive relative to the other doctors who testified,

specifically attributed the Employee’s diminished ability to spread his thumbs apart from his hands

“to the injuries that he had suffered to the bases of both of his thumbs.” It was his assessment that

the stacking of lumber had “continued to aggravate and advance the subluxation or partial dislocation

and osteoarthritis of both of his thumbs.” When asked to state the effect of repetitively lifting the

buckets of chemicals during the last several years of his employment, Dr. Kennedy responded that

such activity “would have increased the forces conducted through the bases of his thumbs and would

reasonably have been expected to aggravate and advance the osteoarthritis.” Dr. Kennedy also

believed that the surgical fusion of the joints in the Employee’s thumbs “increased the normal

biomechanical forces” in his thumbs, making him more vulnerable to injury. Finally, Dr. Kennedy

assigned anatomical impairments of 8% to each hand, and recommended that the Employee

permanently avoid “vigorous pushing or pulling, or rapid, repeated motions with either of his hands.”

It was his opinion that the Employee could not “carry out maximum gripping or pinching with either

hand,” or, with the use of two hands, lift or carry twenty pounds occasionally or ten pounds

frequently, or lift or carry five pounds with one hand.

Dr. Brantley Burns, also an orthopedic surgeon, likewise conducted an independent medical

examination of the Employee. He concurred in the diagnosis of osteoarthritis, and testified by

deposition that causation was “probably a combination of things. [While i]t certainly has a large

3

genetic component to it . . . any activity that you do can . . . worsen [the] problem to the point of

needing some treatment.” He explained that “all and any” activity, including work, would cause the

condition to worsen.

Dr. Ronald Fadel, an orthopedic physician who no longer performs surgery, reviewed the

Employee’s medical records on behalf of the Employer. Unlike the other two physicians, Dr. Fadel

did not actually examine the Employee. He testified by deposition that the cause of osteoarthritis,

which he described as common for those in “the sixth and seventh decades of life, regardless of work

activity,” is unknown. It was his opinion that there was “no known relationship” between repetitive

use of the hands and the development of the disease. Dr. Fadel testified that “activities of daily

living [are] as likely to produce this disease in one person as it is in another.” In this regard, he

disagreed with Dr. Kennedy’s conclusion that the Employee’s work aggravated his pre-existing

arthritic condition. Dr. Fadel conceded, however, that had he actually treated the Employee, he

“would understand more of his disease and what’s going on in the process.”

Dr. Norman Hankins, a vocational evaluator, testified that the Employee’s IQ was in the

“low/average range,” and that he could read at a fifth grade level. According to Dr. Hankins, the

Employee possessed math skills at the seventh grade level. Dr. Hankins assessed a vocational

disability of 82% to the hands.

The trial accredited the testimony of the Employee, finding that his underlying osteoarthritis

was worsened and advanced by his work activities, necessitating the fusion surgeries on the base of

his thumbs. The trial court awarded 40% permanent partial disability to each hand, plus temporary

total disability benefits for the periods of time that the Employee was off work recuperating from the

surgeries on his hands.2 By awarding benefits, the trial court gave greater credence to the deposition

testimony of Dr. Kennedy, observing that “Dr. Kennedy says that there is causation,” and “the other

[D]octor [Fadel] says there is not.” The Employer appealed, first contending that the trial court erred

by finding that the Employee had suffered a compensable aggravation of his pre-existing

osteoarthritis; and second, challenging the award of temporary total disability benefits. Finally, the

Employer maintained that the award of 40% to each hand was excessive.

The Special Workers’ Compensation Appeals Panel concluded that the osteoarthritis in the

Employee’s hands was not caused or aggravated by the work he performed for the Employer and,

therefore, that the trial court had erred by awarding any benefits. In reaching this conclusion, the

Panel observed that all of the physicians agreed that the underlying condition itself was not caused

by the employment, and that the disease, by its nature, is progressive. The Panel specifically relied

on the opinion of Dr. Fadel that there was no relationship between work activities and the

development or advancement of osteoarthritis. We granted the Employee’s request for full Court

review in order to address these important issues.

2

The employee was absent from work due to the first hand surgery from November 6, 2004, to February 11,

2005. He missed work from June 24, 2005, to October 30, 2005, for the second hand surgery.

4

Standard of Review

We review the judgment of the trial court in workers’ compensation cases “de novo upon the

record . . . accompanied by a presumption of the correctness of the finding, unless the preponderance

of the evidence is otherwise.” Tenn. Code Ann. § 50-6-225(e)(2) (2008). In such cases, the

reviewing court must conduct an in-depth examination of the trial court’s factual findings and

conclusions. Wilhelm v. Krogers, 235 S.W.3d 122, 126 (Tenn. 2007). When the trial court has seen

and heard the witnesses, considerable deference must be afforded any factual determinations. Tryon

v. Saturn Corp., 254 S.W.3d 321, 327 (Tenn. 2008). The same deference need not be afforded

findings based upon documentary evidence, such as depositions. Glisson v. Mohon Int’l,

Inc./Campbell Ray, 185 S.W.3d 348, 353 (Tenn. 2006). Indeed, where medical testimony is

presented by deposition, this Court may independently assess the medical proof to determine where

the preponderance of the evidence lies. Crew v. First Source Furniture Group, 259 S.W.3d 656, 665

(Tenn. 2008). Reviewing courts afford no presumption of correctness to any conclusions of law.

Perrin v. Gaylord Entm’t Co., 120 S.W.3d 823, 826 (Tenn. 2003). Nevertheless, the testimony of

expert witnesses must be considered in conjunction with the testimony of an employee as a lay

witness. Thomas v. Aetna Life & Cas. Co., 812 S.W.2d 278, 283 (Tenn. 1991).

Applicable Law

Any employee seeking to recover workers’ compensation benefits must prove that the injury

both arose out of and occurred in the course of the employment. See Tenn. Code Ann. § 50-6-

102(12) (2008). “The phrase ‘arising out of’ refers to the cause or origin of the injury and the phrase

‘in the course of’ refers to the time, place, and circumstances of the injury.” Crew, 259 S.W.3d at

664. An injury arises out of employment when there is a causal connection between the conditions

under which the work is required to be performed and the resulting injury. Fritts v. Safety Nat’l Cas.

Corp., 163 S.W.3d 673, 678 (Tenn. 2005). Except in the most obvious cases, causation must be

established by expert medical evidence. Glisson, 185 S.W.3d at 354. Although evidence of

causation may not be speculative or conjectural, “absolute medical certainty is not required, and

reasonable doubt must be resolved in favor of the employee.” Id. Accordingly, “benefits may be

properly awarded to an employee who presents medical evidence showing that the employment could

or might have been the cause of his or her injury when lay testimony reasonably suggests causation.”

Id.; see also Fitzgerald v. BTR Sealing Sys. N. Am. – Tenn. Operations, 205 S.W.3d 400, 404 (Tenn.

2006).

Equally well-settled is the principle that an employer takes an employee “as is” and assumes

the responsibility of having a pre-existing condition aggravated by a work-related injury which might

not affect an otherwise healthy person. Hill v. Eagle Bend Mfg. Inc., 942 S.W.2d 483, 488 (Tenn.

1997). Thus, an employer is “liable for disability resulting from injuries sustained by an employee

arising out of and in the course of his employment even though it aggravates a previous condition

with resulting disability far greater than otherwise would have been the case.” Baxter v. Smith, 364

S.W.2d 936, 942-43 (Tenn. 1961). Tennessee law likewise recognizes that a worker may sustain a

compensable gradual injury as the result of continual exposure to the conditions of employment. See

Cent. Motor Express, Inc. v. Burney, 377 S.W.2d 947, 948-50 (Tenn. 1964). In other words, unlike

in some other jurisdictions, there is no requirement that the injury be traceable to a definite moment

5

in time or triggering event in order to be compensable.

However firmly implanted the principle may be that an employer must bear the risk of

aggravation of an employee’s pre-existing condition, the precise contours of the rule have not always

been articulated in a consistent manner. We recently stated in Barnett v. Milan Seating Systems:

Under Tennessee law, when a plaintiff suffers from a pre-existing

condition, a claim is not compensable when the employment does not

cause an actual progression or aggravation of the underlying injury.

If the employment causes an increase in pain with no corresponding

permanent anatomical change, then there is no new compensable

injury.

215 S.W.3d 828, 835 (Tenn. 2007) (citations omitted). This description of the law finds its origin

in cases that denied compensation because the work injury only made the pain of the pre-existing

condition worse, but did not otherwise advance or progress the condition or result in any other

disabling condition. See, e.g., Townsend v. State, 826 S.W.2d 434, 436 (Tenn. 1992); Smith v.

Smith’s Transfer Corp., 735 S.W.2d 221, 225-26 (Tenn. 1987). It is notable that none of these cases

used the “anatomical change” terminology, although numerous subsequent opinions of the Workers’

Compensation Appeals Panel have done so.

There is also a long history of cases in Tennessee establishing that there is “no doubt that

pain is considered a disabling injury, compensable when occurring as the result of a work-related

injury.” Talley v. Va. Ins. Reciprocal, 775 S.W.2d 587, 592 (Tenn. 1989) (citing Boling v. Raytheon

Co., 448 S.W.2d 405, 407 (Tenn. 1969)). Following this guiding principle, we have held that “[a]n

employer is responsible for workers compensation benefits . . . if employment causes an actual

progression or aggravation of the prior disabling condition or disease which produces increased pain

that is disabling.” Hill, 942 S.W.2d at 488; see also White v. Werthan Indus., 824 S.W.2d 158, 160-

61 (Tenn. 1992) (upholding award of compensation to employee with pre-existing back condition

where a fall at work rendered him “virtually immobilized by pain,” even though the medical expert

“could not express a medical opinion as to increased anatomical injury”).

The confusion in this area has manifested itself in cases such as this, which involve the

aggravation of pre-existing arthritic conditions. In Cunningham v. Goodyear Tire & Rubber

Company, 811 S.W.2d 888 (Tenn. 1991), for example, an employee sought to recover for the

aggravation of his pre-existing osteoarthritis. As in the present case, the underlying condition was

asymptomatic until the employee started performing “hard labor” for the employer. Id. at 890. The

medical evidence showed that while the cause of osteoarthritis was unknown, strenuous physical

activity could exacerbate the condition. Id. Cunningham, whose job required him to lift and carry

heavy objects, became physically disabled to the point of requiring the use of a wheelchair. Despite

the acceleration of his osteoarthritis to such a debilitating extent, along with physical changes to his

joints documented by x-rays, he was denied benefits. Citing to Smith’s Transfer, the majority found

that Cunningham’s work duties aggravated his pre-existing condition by making the pain worse, but

6

it did not otherwise advance the severity of his osteoarthritis. Id. at 891. The Court held that

“[w]here the employment does not cause an actual progression or aggravation of the underlying

disease, but simply produces additional pain, there is substantial authority that a claim is not

compensable when the disease itself . . . originated in conditions outside the employment.” Id. at

890.

In dissent, Justice Martha Craig Daughtrey observed that the majority had properly concluded

that work injury causing a mere increase in pain is not compensable. Id. at 891 (Daughtrey, J.,

dissenting). However, she criticized the majority for only applying the first part of the rule from

Smith’s Transfer. Id. The second part of that rule permits recovery when the work injury advances

the severity of the condition, or results in a disabling condition other than increased pain. Id. (citing

Smith’s Transfer, 735 S.W.2d at 225-26). Justice Daughtrey opined that because Cunningham

became “the victim of virtually complete physical debilitation, as the result of osteoarthritis

aggravated by the conditions of his employment,” there was “simply no way to conclude that [he]

was suffering from merely an ‘increase in pain.’” Id. at 894.

Subsequent to Cunningham, benefits have been awarded for the aggravation of pre-existing

arthritic conditions. For example, in Sweat v. Superior Industries, Inc., 966 S.W.2d 31 (Tenn.

Workers’ Comp. Panel 1998),3 the Appeals Panel affirmed the trial court’s finding that the

employee’s pre-existing arthritis was aggravated by his employment. As in this case, Sweat had no

symptoms of the disease until after he began working for the employer. Likewise, a physician

testified that his work activities “advanced and resulted in actual progression of his underlying”

arthritic condition. Id. at 32. Although another doctor expressed the view that Sweat’s job activities

were unrelated to his condition, the Appeals Panel emphasized that he was asymptomatic prior to

performing the tasks assigned by the employer. The Appeals Panel also observed that “[t]here being

no way [to] quantify how much worse his condition was made by his work, . . . the employer must

bear the burden of any uncertainty.” Id. at 34.

More recently, in Mathenia v. Milan Seating Systems, 254 S.W.3d 313 (Tenn. Workers’

Comp. Panel 2007), our Appeals Panel once again affirmed an award of benefits where the employee

aggravated pre-existing osteoarthritis in her thumb. Although the physicians agreed that Mathenia

had osteoarthritis that pre-dated her employment, they differed as to whether her work activities

aggravated the condition. One physician testified that “while her work and activities might have

caused her an increase in her discomfort, I’m unaware of any specific anatomic change that would

have either caused or aggravated that condition.” Id. at 316. A second physician, however, testified

that if she was completely pain free prior to her work injury, and otherwise experienced no

symptoms of arthritis, “I would suspect that the injury at work may have caused her problem.” Id.

at 319. He added that Mathenia’s work “could have initially caused some damage to the joint that

3

Opinions of the Supreme Court’s Special W orkers’ Compensation Appeals Panel may be published in the

official reporter by order of a majority of the Court. Tenn. Sup. Ct. R. 4(A)(3). Published opinions “shall be considered

controlling authority for all purposes unless and until such opinion is reversed or modified by a court of competent

jurisdiction.” Tenn. Sup. Ct. R. 4(G)(2).

7

over time, symptoms started occurring and with an arthritic joint, usually repetitive activity or stress

through that area, will cause discomfort and pain.” Id. Finally, a third physician testified that

“[t]here is no way to know [whether [Mathenia’s] work caused anatomical change] except that we

know that to have increased pain, something has to change anatomically to cause that pain . . . and

so on that basis, a good argument could be made by inductive reasoning that there has been some

change.” Id. Based on this evidence, the Appeals Panel affirmed the award of benefits to the

employee.

In light of these disparate results under similar circumstances, we are resolved to provide

some clarity for the trial courts. We believe that our holding in Smith’s Transfer, which we have

cited with approval on numerous occasions, see, e.g., Townsend, 826 S.W.2d at 436, provides the

proper framework where an employee seeks compensation on the grounds that a work injury has

aggravated a pre-existing injury or condition. We reiterate that the employee does not suffer a

compensable injury where the work activity aggravates the pre-existing condition merely by

increasing the pain. However, if the work injury advances the severity of the pre-existing condition,

or if, as a result of the pre-existing condition, the employee suffers a new, distinct injury other than

increased pain, then the work injury is compensable.

Analysis

Guided by these principles, we turn to our analysis of the circumstances of this case. The

Employer insists that the Panel’s opinion reversing the judgment of the trial court should be affirmed

because the evidence failed to establish a causal connection between the Employee’s work activities

and any aggravation of the pre-existing arthritic condition. More specifically, the Employer argues

that to the extent the Employee’s work activities have aggravated his underlying condition, they have

caused only an increase in pain which, as we have acknowledged, is not by itself a compensable

injury.

The issue here, of course, is not whether the Employee’s job responsibilities caused his

bilateral carpometacarpal osteoarthritis. The medical evidence demonstrates that it did not. Rather,

the dispositive question is whether the Employee’s work caused only an increase in the severity of

his pain, such that he should be deprived of benefits. The trial court, which accredited the lay

testimony of the Employee as to the nature of his injuries, did not believe so, and neither do we.4

Although the medical evidence is conflicting, which is not unusual in litigation of this nature,

we cannot say that the trial court erred by accrediting the testimony of Dr. Kennedy. Based upon his

examination and testing of the Employee, as well as his review of the medical records, including x-

4

In W illiams v. Tecumseh Products Co., 978 S.W.2d 932, 935 (Tenn. 1998), we held an employee’s “very

credible testimony,” as determined by the trial court, “bolstered the medical evidence of causation. Given this

determination of credibility and the trial court’s careful review of the medical evidence, we cannot say that the evidence

preponderates against the trial court’s finding . . . .” Further, “an award may be based upon medical testimony that [the

employment] ‘could be’ the cause of the employee’s injury, when there is also lay testimony from which it reasonably

may be inferred that the [employment] was in fact the cause of the injury.” Resser v. Yellow Freight Sys., Inc., 938

S.W .2d 690, 692 (Tenn. 1997).

8

rays taken before and after the surgeries, Dr. Kennedy concluded that the Employee had severe

osteoarthritis in both of his thumbs, and that the cumulative trauma of his work aroused the condition

“from dormancy into a regularly painful reality.” Dr. Kennedy further determined that the

Employee’s work activities “permanently aggravated and advanced [the] pre-existing, underlying

carpometacarpal osteoarthritis in both of his thumbs and caused the painful instability of those joints

which ultimately necessitated” the surgeries in 2004 and 2005. Dr. Kennedy observed that it was

more likely than not that the job responsibilities necessitated the surgeries, and that the osteoarthritis

“would not have been advanced or aggravated to the extent that it was” but for his activities at work.

When asked what he specifically meant by “aggravated,” Dr. Kennedy explained that the job duties

gradually stretched and loosened the thumb ligaments and over a period of time caused a

deterioration of the cartilage between the bones.

In addition, Dr. Kennedy attributed the Employee’s diminished ability to spread his thumbs

apart from his hands “to the injuries that he had suffered to the bases of both of his thumbs.” It was

his opinion that there were times when the Employee’s work responsibilities sorting and stacking

lumber “aggravate[d] and advance[d] the subluxation or partial dislocation and osteoarthritis of both

of his thumbs.” When asked to state the effect on his condition of repetitively carrying the buckets

of chemicals over a several year period, Dr. Kennedy responded that such activity “would have

increased the forces conducted through the bases of his thumbs and would reasonably have been

expected to aggravate and advance the osteoarthritis.” He also believed that the surgical fusion of

the joints in the Employee’s thumbs “increased the normal biomechanical forces” in his thumbs,

making him more vulnerable to injury. Finally, he assigned anatomical impairments of 8% to each

hand, and recommended that the Employee permanently avoid “vigorous pushing or pulling, or

rapid, repeated motions with either of his hands.” Moreover, Dr. Kennedy opined that the Employee

could not “be expected to carry out maximum gripping or pinching with either hand,” or lift or carry

twenty pounds occasionally, ten pounds frequently with two hands, or five pounds with one hand.

Restrictions such as these, of course, are significant for a person who has spent his working years

performing manual labor.

Although Dr. Fadel, in particular, disagreed with Dr. Kennedy’s conclusion that the

Employee’s work aggravated his pre-existing arthritic condition, he did concede that if he had

actually treated the Employee he “would understand more of his disease and what’s going on in the

process.” Unlike Dr. Kennedy, Dr. Fadel never examined the Employee. Dr. Burns’ testimony was

not particularly helpful to either side. He acknowledged, however, that the Employee’s job

responsibilities, along with other activities, would cause the arthritic condition to worsen. Our

examination of the record confirms that Dr. Kennedy’s findings, which were based not only upon

his own administration of tests but also his first-hand observations of the Employee, were more

detailed than that of the other physicians who testified. He specifically described anatomical changes

in the hands that he attributed to the nature of the work.

As stated, an employer takes every employee “as is.” Hill, 942 S.W.2d at 488; see 82 Am.

Jur. 2d Workers’ Compensation § 300 (2008). Further, an injury may be compensable whether

sudden or gradually developed over time. Burney, 377 S.W.2d at 948-50. Absolute certainty is not

9

required in a workers’ compensation claim; benefits may be awarded where the medical evidence

suggests that the employment may have been the cause of injury and there is also lay testimony,

particularly if it is corroborative of a medical opinion rendered by deposition, from which causation

may be inferred. See Crew, 259 S.W.3d at 664-65. Thus, the Employee’s testimony merits

consideration. One of his assignments was to work outdoors – rapidly and continuously removing

heavy boards by hand from a conveyor and sorting and stacking them by grade. It was during this

time that he first began to develop any pain in either hand. Later, his assigned responsibilities

required him to lift forty-five to seventy pound buckets to shoulder level. The wire handles on the

buckets rested directly on his thumbs, causing “sharp pain” with each lift. That his job duties

required him to fill approximately 100 empty tubes with a chemical filler each hour of an eight-hour

shift is not in dispute. The Employee also testified, without contradiction, as to the extent of his

limitations, stating that at the time of trial he could not fully extend his thumbs, had trouble making

a pinching motion, and had diminished grip strength. Because of continuing pain in his hands, he

could no longer perform ordinary outdoor chores, hobbies, or simple tasks such as grooming his hair

or brushing his teeth. His medical history corroborates that he first experienced the pain, numbness,

and tingling in both of his thumbs when he was required to stack heavy boards, thus lending support

to the medical assessment by Dr. Kennedy.

Based upon our independent review of the medical depositions and the other proof offered

at trial, we are persuaded that the evidence does not preponderate against the finding of the trial court

that the Employee suffered a compensable injury to his hands. Although the evidence of causation

is particularly close, the lay testimony in conjunction with the medical evidence is sufficient to

establish that the Employee’s work activities did not merely increase the pain in his hands, but

advanced the severity of his pre-existing arthritic condition. To the extent that reasonable doubt may

exist on this point, our law requires an interpretation favorably to the Employee. E.g., Wilhelm, 235

S.W.3d at 127. That view is consistent, of course, with the remedial nature of the Workers’

Compensation Act.5

For the reasons that the Employer argued the claim was not compensable, the Employer

contends that the trial court erred by awarding temporary total benefits for missed work as the result

of the surgeries to each hand. The Employer also maintains that the award of 40% to each hand was

excessive. We have determined that neither of these arguments has merit. Finally, the Employee

contends for the first time in this Court that the trial court’s judgment mistakenly awarded 120 weeks

of benefits rather than 160 weeks of benefits, and that the judgment should be corrected. This is an

issue of fact and was never brought to the trial court’s attention. Upon remand, the Employee may

direct the merits of this claim to the trial court.

5

“Tennessee Code Annotated section 50-6-116 declares the W orkers’ Compensation statute to be remedial in

nature, and directs that the statute ‘shall be given an equitable construction by the courts, to the end that the objects and

purposes of this chapter may be realized and attained.’ Accordingly, these laws should be rationally but liberally

construed to promote and adhere to the Act’s purposes of securing benefits to those workers who fall within its

coverage.” Martin v. Lear Corp., 90 S.W.3d 626, 629 (Tenn. 2002) (citations omitted).

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Conclusion

In this instance, the trial judge, having seen the Employee and heard his testimony first hand,

was in the best position to evaluate credibility. Because the medical evidence does not preponderate

against the finding of causation and the award of benefits, we reverse the decision of the Appeals

Panel. The case is remanded for any further proceedings which may be necessary. Costs on appeal

are assessed against the Employer, Armstrong Woods Products, for which execution may issue if

necessary.

_________________________________

GARY R. WADE, JUSTICE

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