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Mason v. Atlantic Soft Drink Co.8/15/2005
I. FACTUAL BACKGROUND
Richard Mason was forty-two years old at the time of the trial. Having completed only the eighth grade, his reading, writing and math skills are limited. Prior to working for Pepsi, he had done janitorial work, had worked for a pipeline supply store driving a truck delivering oil well supplies, construction work, and had done farm work. He began working for Pepsi in 1987 as a route salesman. In 1993 or 1994, Pepsi began bulk delivering its line of soft drink products. Mr. Mason took orders by entering the amount of products desired into a small hand-held computer. The product was delivered to the customer on pallets. Mr. Mason would stack products from that pallet onto a four- wheel wagon or float, take it out into the store and stack it on the displays.
In August 1999, he was at a WalMart in Cookeville lifting a case of three liter bottles when he felt a stabbing and burning in his lower back. The pain in his back radiated to his leg, to the top of his knee and caused a burning sensation in the bottom of his foot. He was treated at the Convenient Care Clinic in Cookeville where he received a shot and was prescribed some muscle relaxers and anti-inflammatories. None of these things helped, and he was referred to Dr. Joseph Jestus. After undergoing an MRI, Dr. Jestus treated him for a bulging disc with anti-inflammatories and physical therapy. When Mr. Mason continued to have symptoms, Dr. Jestus prescribed a steroid injection. He returned to work but his symptoms continued. Mr. Mason returned to Dr. Jestus who performed surgery in November 2002. The surgery took away some of the numbness, but it did not help the pain. He has difficulty doing simple tasks such as mowing, doing dishes and even shaving. At one time he was an avid hunter, but he no longer engages in that activity because of the injury to his back.
In August 2002, Mr. Mason sustained another injury. The pallets of soft drinks are delivered wrapped in plastic. He caught the toe of his shoe in a piece of that plastic and twisted his foot to the inside causing an injury to his right knee. He was sent to Convenient Care and then to Dr. Richard Irvin Williams. He has had two surgeries on his knee. His knee is unstable, and he wears a brace. He has difficulty walking up and down stairs or just walking on level ground. He wears the brace all of the time except when relaxing at home. He has a permanent limp, experiences difficulty entering and exiting vehicles and is only able to walk ten to twenty steps without experiencing increased pain. Following the injury to his knee, Mr. Mason has not returned to work. He now feels there is no job he can do with the injuries to his back and knee.
II. MEDICAL AND EXPERT EVIDENCE
Dr. Joseph Jestus, a neurosurgeon practicing in Cookeville, testified by deposition. He first saw Richard Mason on October 12, 1999. Mr. Mason reported having an acute onset of back pain in August with left leg pain. According to Mr. Mason, this occurred while lifting a pallet of Pepsi at WalMart. He was placed on light duty, but his pain did not get better. An MRI scan revealed an L-4 central disc protrusion. Dr. Jestus felt he had left sciatica or left leg pain, secondary to a lumbar disc protrusion at L-4/L-5. Dr. Jestus believed the injury to be work-related. He prescribed anti-inflammatory medications and allowed him to continue working. Dr. Jestus saw Mr. Mason once a month for six to eight months. The pain did not resolve. Eventually, in May 2000, a myelogram was done. The myelogram showed non-nerve root pilling on the left over the L-5 nerves, secondary to a bulge at L-4. Dr. Jestus advised Mr. Mason that he believed that if they decompressed the n
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