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Webb v. Shoe City9/20/2000
Mailed May 17, 2000
This case involves a back injury sustained in 1995 by Ernestyne M. Webb, an employee of Shoe City, Incorporated. The employee brought suit against the employer and its insurer, The Traveler's Insurance Company. The trial court found that the employee had sustained a herniated disk at the L-4 level of her spine and suffered a 15 percent anatomical impairment rating as a result. The court awarded benefits based upon 67.5 percent disability to the body as a whole. The court also found that the employee was not returned to work and declined to apply the two and one-half (2.5) times cap in Tennessee Code Annotated § 50-6-241(a). The defendants have presented the following issues on appeal: (1) whether the evidence preponderates against the trial court's finding that the plaintiff was not returned to work as required by Tennessee Code Annotated § 50-6-241(a); and (2) whether the evidence preponderates against the court's finding that the plaintiff suffered a 15 percent anatomical impairment to the body as a whole. We find that we must affirm the trial court's judgment as modified.
Tenn. Code Ann. § 50-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Affirmed as Modified.
Tatum, Sr. J., delivered the opinion of the court, in which Holder, J., and Ellis, Sp . J., joined.
MEMORANDUM OPINION
At the time of trial, the plaintiff, Ernestyne M. Webb, was a sixty (60) year old widow with a tenth grade education. The plaintiff was employed by Shoe City, Incorporated, as a store manager approximately six (6) years before she was injured on June 14, 1995. She spent approximately eleven (11) years prior to that time working for Shoe Fair. The plaintiff admitted to having "slight arthritis" prior to her injury but was otherwise in good health. She described her managerial duties as including stocking, racking, and packing shoes, as well as cleaning and maintaining the store. On June 14, 1995, the plaintiff was stacking boxes of men's work shoes in crates when she felt a sharp pain in the lower part of her back. When the pain did not subside two days later, she was x-rayed by her doctor, who referred her to Dr. Jesse McGee. Dr. McGee examined the plaintiff and sent her to the emergency room of Baptist East Hospital. She was ultimately hospitalized with two ruptured disks, and surgery was performed by Dr. Harry Friedman.
The plaintiff testified that her back problems did not improve following her surgery, as she was in constant pain. She stated that Dr. Friedman never recommended a work hardening program or any type of physical therapy for her until almost a year after the surgery, and her elevated blood pressure prevented her from continuing therapy. In December of 1995, the plaintiff's husband died from lung cancer, but the plaintiff denied that she was under stress from his treatments and death.
The plaintiff testified that she received a slip of paper from Dr. Friedman in March of 1996, stating that she was to return to work. She went to the store on Elvis Presley Boulevard to report for work, but the store manager did not know she was supposed to be there. The store manager attempted to reach the District Manager, Mr. Bowser, but was unsuccessful. The plaintiff waited almost three hours at the store for Mr. Bowser to call back before leaving. On another occasion, the plaintiff met with Mr. Bowser at another store, but he told the plaintiff that he could not offer her any work at that time until he got the results of an MRI that the plaintiff said was ordered by Dr. Friedman. She never heard from Mr. Bowser or Shoe City after that time, nor did she ever call Mr. Bowser once the MRI results came back. T
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