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Day v. Travelers Insurance Company6/2/2000
AFFIRMED AND REMANDED
CORLEW, Special Judge
This worker 's compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with the provisions of Tennessee Code Annotated ยง50-6-225 (e) (3) (1998 Supp.) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The Trial Court, after considering all of the evidence, found the worker to lack credibility, and determined that she was not entitled to recover under the workers' compensation law, and after consideration of the entire record, we affirm the Trial Court's decision.
The Appellant alleged an injury to her back as she worked as a cashier for the Petro Shopping Center in Knoxville. The worker asserted that as she bent over to move a floor display in order to sweep under it, she felt a stabbing pain in her back. Although she worked the remainder of the evening, she asserts she did no heavy work. She reported the injury the next day to her supervisor.
Prior to this injury, the Appellant had suffered other injuries. Various medical tests had been conducted with regard to those injuries. Much of the testimony centered around the credibility of the worker , inasmuch as her prior statements to her doctors indicated great suffering and an inability to function in many areas. At one time, for example, she had indicated to one of her doctors that she had been unable to walk, and for a period of time, ambulated only by wheelchair. In a question in her discovery deposition, introduced into evidence only for impeachment, she testified that she had done nothing more strenuous than walk across a store since the date of the accident in this cause. Subsequent evidence was introduced that she had joined a health club, although the worker asserted that she had gone primarily to provide company to her husband who was a weight lifter, and had worked out very lightly only a single time or so. Further evidence was presented that the worker had gone on vacation to the beach. She testified that she had been in such pain that she was unable to enjoy the vacation, and although she went in the water, she only waded in to a depth below her waist. Photographs were then displayed and identified by the worker, which appeared to show that the worker's hair was wet, which the worker explained was due to the fact that some of those with whom she was vacationing were splashing in the water, wetting her hair. Another photograph was then displayed showing the Appellant seated in a position on the beach, appearing to smile, in a position which her doctor testified he would have felt she was unable to assume, based upon the complaints the Appellant had made to him. The Appellant explained this photograph by asserting that she assumed this position only for a brief moment, posing for the photograph.
Two medical doctors testified by deposition. Both were asked questions concerning objectivity of findings. Both testified that the tests conducted upon the Appellant both before and after her alleged injury reflected a slight anatomical change in the area of her low back where the Appellant alleged her injury. Both doctors testified that their anatomical findings were consistent with the history given by the Appellant of a work-related injury, and based upon the Appellant's subjective complaints, objective findings, and history related by the worker, they concluded that the Appellant's injury was work-related. Upon strenuous cross-examination, however, both doctors acknowledged that given the Appellant's prior back condition, which included a prior neck injury, a prior low back injury which occurred when the Appellant bent over to pick up an item a
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