Court Cases Court Cases
AL  AK  AZ  AR  CA  CO  CT  DE  FL  GA  HI  ID  IL  IN  IA  KS  KY  LA  ME  MD  MA  MI  MN  MS  MO  MT  NE  NV 
NH  NJ  NM  NY  NC  ND  OH  OK  OR  PA  RI  SC  SD  TN  TX  UT  VT  VA  WA  WV  WI  WY  EO  NR  PR  DC  US 
 
View Case Details
 
LARRY J. WELLS Plaintiff/Appellant
vs.
ORGILL BROTHERS & COMPANY Defendant/Appellee.
 
Case:
S/C No. 02-S-01-9103-CV-00006
 
Location:
SUPREME COURT OF TENNESSEE AT JACKSON
 
Attorneys:
For Appellant: Lewis K. Garrison Memphis Tennessee. For Appellee: R. Dolan Click Johnson and Bateman Memphis Tennessee.
 
Court:
ANDERSON Reid Drowota O'Brien Daughtrey
 
Author:
The Hon. Justice E. Riley Anderson
 

In this worker's compensation case the trial court awarded the plaintiff 40 percent permanent partial disability to the left upper extremity. Both the plaintiff and defendant appeal contending that the evidence preponderates against the award. The defendant also contends that the plaintiff's injury was due to intoxication. We disagree and affirm.

FACTUAL HISTORY

On March 14 1986 the plaintiff Larry J. Wells ("Wells") went to work as an order filler for the defendant Orgill Brothers and Company ("Orgill Brothers"). Wells' normal job duties at Orgill Brothers included physically pulling boxes or cartons of items ordered from the warehouse area. On August 8 1986 Wells was injured while filling an order when a stack of cartons containing duct tape fell on top of him.

As a result of his injury Wells was in the hospital for ten days and off from work for a month. In early September of 1986 Wells was cleared by his doctor to return to light duty work but Orgill Brothers did not have light duty work. Because he was unable to return to work and because he had missed more than 120 days within a 36-month period due to this injury and a previous injury Wells' employment with Orgill Brothers was terminated under the provisions of a labor union contract. After his termination Wells filed this action for worker's compensation benefits.

At trial Wells testified that at the time of his injury he had just finished lunch and was filling an order for duct tape from four stacks of cartons. He said he remembers removing one carton from the shortest stack and then being struck from behind but does not remember anything else until he arrived at the hospital. In addition he testified that since the injury he has had considerable pain in his neck back and wrist. Wells said that he has had difficulty walking or standing for long periods of time and that he has had to wear a wrist brace constantly.

Tommy Johnson one of Wells' co-workers testified that at the time and place of the injury he was working as an order filler and was standing about five feet away. Johnson said he saw Wells pick up a carton of duct tape from the top of a stack of four causing two boxes to fall from a taller stack of six to seven that apparently had been braced by the shorter stack. Johnson said that one 30-35 pound box struck Wells "across the head knocking him down to his hands and knees. In addition, Johnson testified that he noticed nothing unusual about Wells' demeanor before the accident, but that shortly after being struck, he appeared dizzy.

Following the accident, Wells was taken to the hospital and seen by Dr. James T. Bridges, who performed an examination, determined he had a head injury, and referred him to a neurologist. A urine sample was taken upon Orgill Brothers' request and sent to Memphis Pathology for a drug screen test. Because no diagnostic tests were performed and because he never examined Wells again, Dr. Bridges said that he was unable to form an opinion as to whether there was any permanent impairment.

Dr. Sheldon Brunk, Director of Toxicology at Memphis Pathology, testified that two drug screen tests were positive for the presence of marijuana metabolites. Dr. Brunk also said that testing positive would suggest use of the drug anywhere from one hour to three to seven days prior" to the drug test.

After being admitted to the hospital on the day of his injury Wells came under the care of Dr. Allen S. Boyd a neurosurgeon. In his deposition the doctor testified that he performed x-rays of the spine and wrist and a CAT scan which were negative but that he referred Wells to an orthopedist who never reported back. Dr. Boyd diagnosed Wells' condition as "a cervical or thoracic and lumbar strain and testified that there should be no permanent physical impairment as a result of the work-related injury.

On August 21, 1987, Wells was examined by Dr. Paul H. Williams, an orthopedic surgeon, to determine his eligibility for social security benefits. The doctor testified that he conducted several tests, including x-rays of the neck, back, and wrist. Although he found no evidence of fracture from the neck and back x-rays, Dr. Williams said he did find evidence of a partially healed fracture of the carpal navicular wrist bone. The medical record, according to Dr. Williams, demonstrated that beginning in 1986 Dr. Canale had kept a wrist cast on Wells for several months and had recommended wrist surgery, which was never performed.

Dr. Williams diagnosed Wells' work-related injury as a sprain and strain of his neck and low back" with a fracture of the carpal navicular in the left wrist. Although he said he did not examine Wells for specific permanent partial impairment Dr. Williams testified that there was very little Wells could do. Dr. Williams said that at the time he examined him Wells could not lift more than five to ten pounds could not do frequent bending stooping or squatting could not stand for long periods of time or walk up inclines and could not perform manual labor.

On October 6 1989 Wells was seen by Dr. Samir R. Dawoud another orthopedic surgeon. The doctor testified that the medical records indicated that Wells' wrist splint had been prescribed by two other doctors for a fractured left wrist following a bone scan in October of 1986. The bone scan Dr. Dawoud explained sometimes detects a fracture which does not show up on x-ray. He found no permanent disability because of the cervical and lumbar strain. With respect to the left wrist he found an "old united carpal scaphoid fracture with slight wrist and carpal arthritis." Under the AMA Guidelines Dr. Dawoud assessed a 10 percent anatomical disability rating to the left upper extremity based upon the united wrist fracture.

TRIAL COURT FINDING

The trial court found that Wells had sustained an injury to his left wrist on August 8 1986 which arose out of and within the course of his employment with Orgill Brothers and awarded 40 percent permanent partial disability to the left upper extremity. The trial court also found that although Wells had marijuana in his system at the time of the accident it was not the proximate cause of the accident and subsequent injury.

SCOPE OF REVIEW

Our review of findings of fact by the trial court is de novo upon the record of the trial court accompanied by a presumption of the correctness of the findings unless the preponderance of the evidence is otherwise. Tenn. Code Ann. SEC. 50-6-225(e)(1983 & Supp. 1991); Lollar v. Wal-Mart Stores Inc. 767 S.W.2d 143 149 (Tenn. 1989).

PREPONDERANCE OF THE EVIDENCE

The first issue raised on this appeal is whether the trial court correctly found that Wells suffered a 40 percent permanent partial disability to the left upper extremity. Wells contends that the preponderance of the evidence clearly supports a larger award. The defendant on the other hand contends that the preponderance of the evidence demonstrates Wells did not suffer any permanent impairment to his neck back or wrist as a result of the work-related injury.

After a complete review of the record we conclude the evidence does not preponderate against the trial court award.

INJURY DUE TO INTOXICATION

The final issue raised on this appeal is whether the trial court correctly concluded that the plaintiff's injury was not due to intoxication. Under Tenn. Code Ann. SEC. 50-6-110 (1983) no compensation shall be allowed for an injury or death . . . due to intoxication . . . [and] the burden of proof shall be on the employer to establish such defense.

In order to invoke the intoxication defense the "employer has the burden of establishing proximate cause." Overall v. Southern Subaru Star Inc. 545 S.W.2d 1 4 (Tenn. 1976). However the employer does not have to prove that the employee's intoxication was the sole cause. The words "due to intoxication" only require the employer to prove that intoxication was a cause of the injury. Dobbs v. Liberty Mut. Ins. Co. 811 S.W.2d 75 77 (Tenn. 1991).

The defendant contends that Wells' injury was due to intoxication because he had marijuana in his system at the time of his injury and because he had cigarette papers in the glove compartment of his car.

While Wells had marijuana metabolites in his system at the time of his injury there is no proof that he was intoxicated at the time of his injury or that his use of marijuana was a cause of his injury. Although the drug screen indicated the presence of marijuana in his system Dr. Brunk testified that testing positive would suggest use of the drug anywhere from one hour to seven days prior to the test. In addition the record shows that Wells did not appear to his co-workers to be under the influence of drugs prior to his injury. Orgill Brothers requested a drug screen only because he was not acting coherently after his injury which resulted from being struck on the head by a 30-35 pound box.

We conclude that the evidence does not preponderate against the trial court's finding that Wells' injury was not due to intoxication.

Accordingly we affirm the trial court judgment. The costs of this appeal are taxed to the plaintiff-appellant.

E. RILEY ANDERSON Justice

Concur: Reid C.J. Drowota O'Brien and Daughtrey JJ.