Cleek v. Wal-Mart Stores, Inc.

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

LINNIE CLEEK v. WAL-MART STORES, INC.

Appeal from the Chancery Court for Madison County

No. 53822 Hon. Joe C. Morris, Chancellor

No. W1999-02419-SC-R3-CV — Decided June 2, 2000

FOR PUBLICATION

The primary issue in this workers’ compensation direct appeal is whether the evidence preponderates

against the trial court’s findings that the appellant is 20% permanently and partially disabled. We

are also asked to decide whether the appellant is entitled to an additional period of temporary total

disability benefits after she made a nominal return to work but later resigned because of pain

associated with her original injury. This case was argued before the Special Workers’ Compensation

Appeals Panel on August 13, 1999, but before an opinion was issued by the Special Panel, the case

was transferred to the Supreme Court for an en banc hearing. After a thorough review of the record

in this case, along with consideration of the relevant legal authorities, we hold that the evidence does

preponderate against the findings of the trial court and that the evidence establishes that the appellant

is permanently and totally disabled. We further hold that the appellant is entitled to an additional

period of temporary total disability benefits for the period between her resignation and maximum

medical improvement. We modify the judgment of the Madison County Chancery Court, and we

remand this case for enforcement of our judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Madison County Chancery Court is

Modified, and Case is Remanded for Enforcement of Judgment as Modified by this Court.

BARKER, J., delivered the opinion of the court, in which ANDERSON, C.J., and BIRCH, J., and

HOLDER , J., joined. DROWOTA , J., not participating.

Donna Brown Wilkerson, Jackson, Tennessee for the appellant, Ms. Linnie Cleek.

Jeffrey P. Boyd, Jackson, Tennessee; B. Chadwick Rickman, Jackson, Tennessee, for the appellee,

Wal-Mart Stores, Inc.

OPINION

In September of 1989, Ms. Linnie Cleek, the appellant in this case, went to work for Wal-

Mart Stores in Bolivar, Tennessee as a door greeter. Nine years earlier, her husband, who provided

the sole source of income for the family, was forced to retire from Colonial Bakery because of

health reasons. Although the family survived for several years on disability benefits from Colonial

Bakery and social security payments, the family needed additional income to make ends meet. It

was at this point in 1989 that the appellant, who had no formal education beyond the tenth grade,

entered the workforce for the first time in her life at the age of 64.

After working for Wal-Mart as a door greeter for eight years, the appellant suffered an injury

in the course and scope of her employment on July 5, 1997. As she was assisting a customer to

verify an article of purchase, she tripped over a couple of pallets left on the floor by another Wal-

Mart employee, and she fell to the floor. As a result of her fall, she suffered a four-part fracture to

her left shoulder as well as significant bruising throughout that area. Given her advanced age—the

appellant was now 72—and the nature of the fractures, Dr. Michael Cobb, the appellant’s treating

physician, recommended that the appellant forego surgery.

On August 27, 1997, Dr. Cobb released the appellant to return to work with several

restrictions. Although she attempted to perform her job as she had done before the accident, she had

significant difficulties doing so. She could no longer do many of the duties that she was previously

capable of doing, such as washing the windows and emptying the trash cans. In addition, she had

trouble putting stickers on returned merchandise and frequently dropped these items when handed

to her. The appellant testified that because of these difficulties, many of the customers became

agitated when she had trouble assisting them.

Most importantly, though, the appellant testified that she experienced considerable pain

throughout her entire left arm, even though only the shoulder was actually broken. In fact, the pain

from her shoulder and arm was so intense at times that she became nauseous and could not perform

the duties required by her job. When she saw Dr. Cobb again on September 25, 1997, the appellant

told him that she was still experiencing great pain and that she was having trouble performing her

job. Dr. Cobb suggested that she retire given her injury, age, and problems she was having at work.

The next day, the appellant gave Wal-Mart notice of her intention to resign, and she formally

resigned two-weeks later. On November 5, 1997, Dr. Cobb completely released the appellant after

determining that she had reached maximum medical improvement.

At trial, the court admitted into evidence the deposition testimony of two doctors who

examined the appellant and who assigned different impairment ratings. Dr. Cobb assigned the

appellant an 8% impairment to the upper extremity, or 5% to the body as a whole, based upon the

impaired range of motion in her arm. Dr. Joseph C. Boals, the appellant’s evaluating physician,

assigned the appellant a 35% impairment to the upper extremity. Although Dr. Boals admitted that

he may have misapplied the AMA Guidelines in making this assessment, he stated that irrespective

of the actual impairment rating, it was clear that the appellant was “almost one-armed” and that “she

is pretty much crippled.”

On February 23, 1999, the trial court entered its final order in which it concluded, among

other things, that the appellant “has no future in the job market other than what the defendant is

willing to give her.” Based on its findings of fact, the trial court awarded the plaintiff “permanent

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partial disability benefits in the amount of 20% to the body as a whole,” and held that the appellant

“has received all of the temporary total disability benefits to which she is entitled.”

The appellant sought review of the judgment arguing that the evidence preponderated against

the trial court’s finding that she was 20% permanently and partially disabled and that she was

entitled to additional temporary total disability benefits. Oral argument was heard before the Special

Workers’ Compensation Appeals Panel on August 13, 1999, but the Panel transferred the case to the

full Supreme Court on January 24, 2000 without rendering an opinion. Before this Court, the

appellant argues that the evidence establishes that the appellant is permanently and totally disabled.

We agree and also conclude that the appellant is entitled to additional temporary total disability

benefits. Accordingly, for the reasons contained herein, we modify the judgment of the chancery

court.

STANDARD OF APPELLATE REVIEW

The extent of vocational disability is a question of fact to be determined from all of the

evidence, including lay and expert testimony. E.g., Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625,

628 (Tenn. 1999); Worthington v. Modine Mfg. Co., 798 S.W.2d 232, 234 (Tenn. 1990). As such,

our review of the trial court’s finding in this case is 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) (1999); Stone v. City of McMinnville, 896 S.W.2d

548, 550 (Tenn. 1995). Under this standard of review, we are required “to weigh in more depth

factual findings and conclusions of trial judges in workers’ compensation cases.” Compare

Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315, 315 (Tenn. 1987), with Anderson v. Dean

Truck Line, Inc., 682 S.W.2d 900, 901-02 (Tenn. 1984) (stating that under the former material

evidence standard of review, this Court was required to accept the findings of fact of trial courts if

those findings are supported by any material evidence).

Accordingly, we are no longer strictly bound by the findings of the trial court in workers’

compensation cases, and we are obliged to review the record on our own to determine where the

preponderance of the evidence lies. Ivey v. Trans Global Gas & Oil, 3 S.W.3d 441, 446 (Tenn.

1999); Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). Although deference

still must be given to the trial judge when issues of credibility and weight of oral testimony are

involved, Seals v. England/Corsair Upholstery Mfg. Co., 984 S.W.2d 912, 915 (Tenn. 1999); Jones

v. Hartford Accident & Indem. Co., 811 S.W.2d 516 (Tenn. 1991), this Court is able to make its own

independent assessment of the medical proof when the medical testimony is presented by deposition.

Landers v. Fireman’s Fund Ins. Co., 775 S.W.2d 355, 356 (Tenn. 1989); Henson v. City of

Lawrenceburg, 851 S.W.2d 809, 812 (Tenn. 1993).

EXTENT OF VOCATIONAL DISABILITY

The appellant first argues that the preponderance of the evidence established that she is

permanently and totally disabled. Any award of permanent total disability must be in compliance

with the statutory definition of total disability contained in Tennessee Code Annotated section

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50-6-207(4). See Prost v. City of Clarksville, Police Dept., 688 S.W.2d 425, 427 (Tenn. 1985). The

statute defines “permanent total disability” as follows:

When an injury not specifically provided for in this chapter as amended, totally

incapacitates the employee from working at an occupation which brings him an

income, such employee shall be considered “totally disabled,” and for such disability

compensation shall be paid as provided in subdivision (4)(A) . . . .

Tenn. Code Ann. § 50-6-207(4)(B) (1999).

As the statute and our case law make clear, the legal definition of permanent total disability

does not carry the same meaning as permanent and total medical disability. Rather, any inquiry as

to whether an employee is permanently and totally disabled from a legal perspective must “focus on

the employee’s ability to return to gainful employment.” Davis v. Reagan, 951 S.W.2d 766, 767

(Tenn. 1997). Accordingly, “[t]he assessment of permanent total disability is based upon numerous

factors, including the employee’s skills and training, education, age, local job opportunities, and his

[or her] capacity to work at the kinds of employment available in his [or her] disabled condition.”

Roberson v. Loretto Casket Co., 722 S.W.2d 380, 384 (Tenn. 1986); see also Perkins v. Enterprise

Truck Lines, Inc., 896 S.W.2d 123, 127 (Tenn. 1995). Although a rating of anatomical disability

by a medical expert is also one of the relevant factors, “the vocational disability is not restricted to

the precise estimate of anatomical disability made by a medical witness.” Henson v. City of

Lawrenceburg, 851 S.W.2d 809, 812 (Tenn. 1993) (citing Corcoran v. Foster Auto GMC, Inc., 746

S.W.2d 452, 458 (Tenn. 1988)). In addition, the employee’s “own assessment of her physical

condition and resulting disability is competent testimony that should be considered . . . .” McIlvain

v. Russell Stover Candies, Inc., 996 S.W.2d 179, 183 (Tenn. 1999).

In this case, the appellant, who was 72 years old at the time of the injury, had no particular

trade skill or training in a given occupation or profession. Her formal education ended after the tenth

grade, and she took no vocational or special classes after that time. She did not receive a GED, and

she lacked a certification in any area. Because she was a homemaker until her husband retired due

to his health in 1980, she had no previous work history or experience prior to her employment with

Wal-Mart in 1989. Presumably for these reasons, the chancery court found that the appellant “has

no future in the job market other than what the defendant is willing to give her.”

The appellee argues that the appellant cannot be permanently and totally disabled because

she demonstrated that she was able to work in some capacity in her former position and earn the

same wages as she did before her injury. While it is true that the appellant returned to Wal-Mart in

some capacity for a short time after her medical release, the evidence in the record establishes that

she was unable to continue in that position because of the pain in her arm and shoulder. Not only

did the appellant testify as to this fact herself at trial, but this reason is further supported by the

advice of both examining physicians that the appellant should resign due to her injuries and age. In

fact, the appellant testified that but for this injury to her shoulder, she would have remained

employed with Wal-Mart for as long as she could because the family needed the income.

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Although we give strong deference to the trial court on issues of witness credibility, we do

not find anywhere in the record that the trial court found the appellant’s testimony not to be credible.

In fact, it appears that she was a credible witness given the fact that her testimony with regard to her

injury or pain was not challenged by Wal-Mart, and given the fact that even Wal-Mart’s witness at

trial believed the appellant to be “a real honest lady.” Assuming the appellant to be a credible

witness with regard to the extent of her pain and the reasons for leaving her employment, we view

her testimony particularly helpful in determining the extent of her vocational disability.

While we agree that the fact of employment after injury is a factor to be considered in

determining whether an employee is permanently and totally disabled, this fact is to be weighed in

light of all other considerations. Based upon our own review of the record, it is clear that the

appellant was not able to continue in her employment with the appellee because of her injuries, and

consequently, she was not employable in the open job market or in any capacity with the appellee.

We hold, therefore, that the preponderance of the evidence weighs against the trial court’s finding

of permanent partial disability and establishes that the appellant is permanently and totally disabled.

Although somewhat similar to the facts of this case, we are also of the opinion that this case

is not controlled by our recent decision in Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625 (Tenn.

1999). In Nelson, the plaintiff, who was a 67 year-old sales associate for Wal-Mart, fell and broke

her hip in the course and scope of her employment. Although the plaintiff claimed that she was

permanently and totally disabled due to her age and lack of transferrable job skills, we held that the

preponderance of the evidence only established permanent partial disability because she was not

“totally incapacitated” in “working at an occupation which brings . . . an income.” Id. at 629. The

plaintiff’s occupational expert testified that the plaintiff could perform part-time, sedentary work,

which was consistent with her medical restrictions, and neither doctor testified that the plaintiff was

permanently and totally disabled. Moreover, because the plaintiff never attempted to perform the

door-greeter position that Wal-Mart offered later her, the evidence did not preponderate against the

findings of the trial court.

Unlike Nelson, however, the evidence in this case does preponderate in favor of permanent

total disability. Although no occupational expert testified in this case that the appellant was

permanently and totally disabled, the trial court correctly confirmed this fact by finding that the

appellant “has no future in the job market.” Further in contrast to Nelson, the appellant in this case

attempted to return to work at Wal-Mart in her position as a door greeter. Although Wal-Mart, to

its credit, was certainly willing to make reasonable accommodations to assist the plaintiff, the

appellant discovered upon her brief return to work that she could no longer perform even this job

because of the intense pain from her injuries. It was at this point that the appellant’s treating

physician recommended to her that she resign due to her advanced age and injuries, a

recommendation that was agreed to by the appellant’s evaluating physician.

Accordingly, we hold that the preponderance of the evidence establishes that the appellant

is permanently and totally disabled, and that the appellant is entitled to receive 260 weeks of benefits

pursuant to Tennessee Code Annotated section 50-6-207(4)(A)(1). Upon remand, the trial court

should determine whether, and to what extent, the appellee is entitled to any offset from any Social

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Security old age insurance benefits received by the appellant. See Tenn. Code Ann. § 50-6-

207(4)(A)(i); McCoy v. T.T.C. Illinois Inc., 14 S.W.3d 734 (Tenn. 2000).

ADDITIONAL TEMPORARY TOTAL DISABILITY BENEFITS

The appellant next argues that she is entitled to additional temporary total disability benefits

covering the period of time between her resignation on October 10, 1997 and her release by Dr. Cobb

on November 5, 1997 after reaching maximum medical improvement. The appellee, on the other

hand, contends that temporary total disability benefits were properly terminated when the appellant

was initially released to returned to work on August 29, 1997.

At least since our decision in Redmond v. McMinn County, 209 Tenn. 463, 354 S.W.2d 435

(1962), we have recognized that the Workers’ Compensation Act provides for four types of disability

benefits, each of which serves a specific compensation purpose. Temporary total disability “refers

to the injured employee’s condition while disabled to work by [the] injury and until [the employee]

recovers as far as the nature of [the] injury permits . . . .” Id. at 468, 354 S.W.2d at 437. Tennessee

Code Annotated section 50-6-207(3)(A)(i) specifically provides that the injured employee shall

receive compensation “for the period of time during which [the employee] suffers temporary total

disability on account of the injury,” and thus the purpose served by such benefits is to allow for “the

healing period during which the employee is totally prevented from working.” Gluck Bros., Inc. v.

Coffey, 222 Tenn. 6, 13-14, 431 S.W.2d 756, 759 (1968).

Thus, in order to establish “a prima facie case of entitlement to temporary total disability, an

employee must prove that he [or she] was (1) totally disabled to work by a compensable injury; (2)

that there was a causal connection between the injury and his inability to work; and (3) the duration

of that period of disability.” Simpson v. Satterfield, 564 S.W.2d 953, 955 (Tenn. 1978). Because

“there is a time when temporary total disability ends, and a determination can be made with

reasonable certainty as to whether the condition of Petitioner would respond to further treatment or

whether his [or her] disability is permanent,” Insurance Co. of North America v. Lane, 215 Tenn.

376, 392, 386 S.W.2d 513, 520 (1965), temporary total disability benefits “are terminated either by

the ability to return to work or attainment of maximum recovery.” See, e.g., Simpson, 564 S.W.2d

at 955.

Although we agree that temporary total disability benefits terminated once the appellant

returned to work in August of 1997, the fact that benefits were terminated by a nominal return to

work does not necessarily mean that temporary total disability benefits can never be revived under

any set of circumstances. While we can find no reported Tennessee case which holds that an

employee may be entitled to a second period of temporary total disability benefits, there are two such

cases issuing from the Special Appeals Panel. In Williams v. Witco Corporation, No. 02S01-9302-

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CV-00013 (Tenn. Sp. W.C. App. P. filed at Jackson Dec. 30, 1993),1 the Panel awarded an employee

a second period of temporary total disability benefits after the employee had returned to work but

had to quit because of the pain from the original back injury. The panel stated that while the case

was unique, a second period of temporary total disability benefits was warranted because the

employee had shown (1) a total disability to work caused by a compensable injury; (2) a causal

connection between the injury and the inability to work; and (3) the period of time of the second

disability. Id. (citing Simpson v. Satterfield, 564 S.W.2d 953 (Tenn. 1978)). In response to the

defendant’s argument that pain alone could not trigger a second period of temporary total disability

benefits, the Panel stated that the employee’s back pain could constitute a disabling injury, so long

as it was resulting from the work-related injury. Id. (citing Boling v. Raytheon, 448 S.W.2d 405

(Tenn. 1969)).

Similarly, in Wise v. Murfreesboro Health Care Center, No. 01S01-9404-CH-00034 (Tenn.

Sp. W.C. App. P. filed at Nashville July 25, 1994),2 an employee injured her back in the course and

scope of her employment, and following surgery, her treating physician released her to return to

work after finding that she had reached maximum medical improvement. Six months later, however,

the employee experienced severe pain in her leg resulting from residual or recurrent disc herniation

from the first injury. In addressing whether the employee was entitled to a second period of

temporary total disability benefits, the Panel stated that although her temporary benefits were

terminated after the employee initially returned to work, she was nevertheless entitled to a second

period of temporary benefits when she again became totally unable to work because of the original

injury. As the Panel stated:

Temporary total disability is generally terminated when the injured employee reaches

maximum recovery. The initial period of temporary total disability in this case was

so calculated. However, the underlying premise that Ms. Wise had reached maximum

medical improvement proved to be premature and incorrect, and another such period

followed the second injury. The trial judge correctly awarded additional

compensation for that frame.

Id.3

1

1993 WL 835601.

2

1994 WL 902477.

3

In Roberson v. Loretto Casket Company, 772 S.W.2d 380 (Tenn. 1986), this Court did not

allow a second period of temporary total disability benefits because the employee, who suffered an

eye injury, returned to work after reaching maximum medical improvement. Although the

employee later resigned from his job because dust irritated his eye, we did not allow additional

temporary total disability benefits primarily because the employee had already reached maximum

medical improvement when he returned to work. Id. at 384 (“Eligibility for [temporary total

disability] benefits is not revived because of a subsequent termination where the proof demonstrates

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Other states also permit a revival of temporary total disability benefits under circumstances

such as those presented in this case. Many states recognize that temporary total disability “may

occur at different times during the recuperative period of healing until maximum medical

improvement is reached or can be ascertained depending on the circumstances of each case.”

Defense Ordinance Corp. v. England, 295 So. 2d 419, 424 (Ala. Civ. App. 1974); see also Larson,

Workmen’s Compensation Law § 57.10 and cases cited therein. The Ohio General Assembly has

even recognized that “an employee, because of an injury or series of injuries suffered in the course

of employment, may find herself, more than once in her lifetime, temporarily unable to work.” State

ex rel. Bing v. Industrial Comm’n, 575 N.E.2d 177, 179 (Ohio 1991) (citing Ohio Rev. Code Ann.

§ 4123.56(A), which states that “[t]he termination of temporary total disability, whether by order or

otherwise, does not preclude the commencement of temporary total disability at another point in time

if the employee again becomes temporarily totally disabled”).

In this case, although Dr. Cobb released the appellant to work on August 29, 1997, he also

later advised the appellant to resign from that job because of the pain associated with her job-related

injuries and her age. Even at the time of her resignation, the appellant still had not reached

maximum medical improvement, which was on November 5, 1997. Consequently, even after the

appellant returned to work, an identifiable period of time existed before maximum medical

improvement when the appellant “[was] totally prevented from working” because of a work-related

injury. To adopt the appellee’s construction of the statute would defeat the purpose of temporary

total disability benefits, which works to ensure that the employee receives some compensation during

“the healing period during which the employee is totally prevented from working.” See, e.g., Fagg

v. Hutch Mfg. Co., 755 S.W.2d 446, 452 (Tenn. 1988).

“From the very beginning, this Court has been ever mindful of the remedial nature of this

legislation and the law had been uniformly construed so as to secure for the beneficiaries of the law

every protection that a liberal construction would authorize.” Fowler v. Consolidated Aluminum

Corp., 665 S.W.2d 713, 715 (Tenn. 1984) (citing Curtis v. Hamilton Block Co., 225 Tenn. 275, 466

S.W.2d 220 (1971); Baxter v. Jordan, 158 Tenn. 471, 14 S.W.2d 717 (1929)); see also Tenn. Code

Ann. § 50-6-116 (1999). We hold, therefore, that temporary total disability benefits, which are

terminated because of a nominal return to work, may be revived when (1) the employee is no longer

without contradiction that the employee not only had reached maximum recovery but had returned

to work as well.”); see also Prince v. Sentry Ins. Co., 908 S.W.2d 937, 940 (Tenn. 1995). To be

certain, though, Roberson did not foreclose the possibility that temporary total disability benefits

could be revived under the proper circumstances.

In the present case, the appellant was yet to reach maximum medical improvement at the time

of her attempted return to work, and she resigned because of the pain associated with and resulting

from her original injury. The appellant is also aided by the fact that her treating physician, who

originally released her to work, later counseled her to resign based on her advanced age and injuries.

Accordingly, we conclude that the decision in this case is more supported by the rationale of

Williams and Wise.

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capable of performing either that job or any other job because of the work-related injury; and (2) the

employee, at the time of resignation, has yet to reach maximum medical improvement from the

original accidental injury. Accordingly, we hold that the appellant’s temporary total disability

benefits should have been revived for the period of time between her final resignation and when she

reached maximum medical improvement. The appellant is entitled, therefore, to two-thirds of the

average weekly wage for the period of time between October 10, 1997 and November 5, 1997, or

$560.82.4

CONCLUSION

Based on our own de novo review of the record, we hold that the preponderance of the

evidence does not support the chancery court’s finding that the appellant is 20% permanently and

partially disabled. Rather, we hold that the preponderance of the evidence establishes that the

appellant is permanently and totally disabled. In addition, we hold that the appellant is entitled to

a second period of temporary total disability benefits from her final resignation until she reached

maximum medical improvement. This case is remanded to the Madison County Chancery Court for

enforcement of the judgment as modified by this Court. Upon remand, the trial court should

determine whether, and to what extent, the appellee is entitled to any offset from any Social Security

old age insurance benefits received by the appellant.

Costs of this appeal are assessed to the appellee, Wal-Mart Stores, Inc., for which execution

shall issue if necessary.

4

This figure is calculated by adding three weeks at the weekly compensation rate of $150.99

($452.97) with five days at one-seventh of the weekly compensation rate ($107.85). See Tenn. Code

Ann. § 50-6-207(1).

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