Lon Cloyd v. Hartco Flooring Company

IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
September 4, 2008 Session

LON CLOYD v. HARTCO FLOORING COMPANY

Direct Appeal from the Chancery Court for Scott County
No. 9560 Billy Joe White, Chancellor

No. E2007-02041-SC-R3-WC - Filed December 30, 2008

In this workers’ compensation appeal, we initially made a referral to the Special Workers’
Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law
in accordance with Tennessee Code Annotated section 50-6-225(e)(3). We then granted direct
review. The employee filed suit for workers’ compensation benefits, claiming that he suffered a
work-related injury to his wrist, which caused an aggravation of the underlying dormant arthritic
condition in his right wrist. In response, the employer asserted that the employee’s arthritis was not
causally related to his employment and argued that the severity of the pre-existing condition was not
advanced by his work activities. The trial court awarded benefits, concluding that the employee had
sustained a 36% permanent partial impairment to his right extremity and was entitled to future
medical treatment and discretionary costs. The employer has appealed, contending that the trial court
erred by finding that the employee had sustained an injury that was causally related to his work
activities and by ruling that the statute of limitations had not expired. Because the evidence does not
preponderate against the judgment of the trial court, we affirm.

Tenn. Code Ann. § 50-6-225(e) (2008) Appeal as of Right; Judgment of the Circuit Court
Affirmed

GARY R. WADE, J., delivered the opinion of the court, in which JANICE M. HOLDER , C.J., and
WILLIAM M. BARKER and CORNELIA A. CLARK, JJ., joined. WILLIAM C. KOCH , JR., J., filed a
concurring opinion.

Linda J. Hamilton Mowles, Knoxville, Tennessee, for the appellant, Hartco Flooring Company.

C. Patrick Sexton, Oneida, Tennessee, for the appellee, Lon Cloyd.

OPINION

I. Facts and Procedural History
Lon Cloyd (“Employee”), fifty-five years of age at the time of trial, has a tenth-grade
education. His work history was primarily as a foundry worker but also included janitorial service.
During the term of his employment for Hartco Flooring Company (“Employer”), a manufacturer of
hardwood flooring, he drove a forklift and operated a saw and “strapper.” By October 28, 2004,
however, he had been a “nester” at the Oneida plant for two or three years, grading and stacking
sections of lumber ranging from one to seven feet long and moving the loaded buggy to its
destination between five and ten times per day. The Employee explained that his job required that
he do it “right and . . . fast.” He testified that on that date, he was stacking wood when his right wrist
“just went out on [him].” He described his wrist as having “knotted up.” The Employee
immediately notified his supervisor, Wendell Cross, of the injury but continued to work that day and
for several days thereafter, using only his left hand in the performance of his duties.

On November 1, the Employee was referred by the Employer to Dr. Tim Smith, who ordered
x-rays, prescribed a wrist splint, and sent the Employee to physical therapy. The Employee then
returned to work, but used only his left hand. Dr. Smith, who treated the Employee on four or five
different occasions, did not testify at trial or by deposition.

By referral from Dr. Smith, the Employee was subsequently examined by Dr. John Harrison,
an orthopedic surgeon. Dr. Harrison, who testified by deposition, examined the Employee on
January 13, 2005, and diagnosed osteoarthritis at the radioschaphoid joint of the right wrist.1
Although the Employee was placed on light duty and prescribed anti-inflammatory medications, his
symptoms did not improve. In the following month, Dr. Harrison administered a steroid injection,
which provided no relief. The Employee saw Dr. Harrison on a third and last occasion on March 10,
2005, at which time his symptoms were essentially unchanged. Dr. Harrison described the
Employee’s condition as an “aging phenomena,” a malady that could have been exacerbated by his
job duties “in the way of bringing on symptomology.” His medical notes indicated that Employee
denied any specific incident. Dr. Harrison acknowledged, however, that an event such as a fall could
accelerate arthritis. Dr. Harrison, who described the Employee as “truthful,” had no opinion as to
whether the work had “worsened the anatomical or the actual pathology of the wrist joint.” Dr.
Harrison found “mild swelling” and “motion deficit” in the wrist and prescribed light duty.
Dorsiflexion, with sixty degrees as normal, was only fifteen to twenty degrees. Volar flexion and
ulnar deviation indicated loss of 25% and 33% respectively. It was Dr. Harrison’s belief that surgery
would eventually become necessary.

On February 7, 2006, Dr. William Kennedy conducted an independent medical examination
of the Employee. Dr. Kennedy, who also testified by deposition, compiled a medical history,
determining that the first onset of pain was on October 28, 2004, and reviewed all of the medical
records pertaining to the Employee’s treatment, including the radiology and therapy reports by each
of the treating physicians. He also considered the x-rays which were made of the Employee’s wrist
on November 9, 2004, and January 13, 2005. Ultimately, Dr. Kennedy diagnosed the Employee’s
condition as “[s]capholunate dissociation with radiolunate osteoarthritis of the right wrist,” and
concluded that the October 28, 2004 incident at the Employee’s workplace “aggravated and
advanced the pre-existing separation of the schapholunate bone and the osteoarthritis and aroused

1
This joint is located below the thumb, at the base of the radius, which is the larger of the two long bones in
the forearm.

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it from a dormant condition[,] not causing any symptoms[,] into a continuously painful and disabling
condition.” While conceding that arthritis was degenerative with an unknown etiology, he testified
that trauma can speed the progression of arthritis. It was his opinion that “it was an intensive form
of cumulative trauma, namely, the trauma within one day of the work of October 28, 2004, that
tipped the scale” as to Employee’s condition, or “was the straw that broke the camel’s back.” Dr.
Kennedy assigned a permanent impairment of 24% to the right upper extremity as a result of the
problem and suggested a permanent twenty-pound lifting limit and other work restrictions.

There was no direct evidence that the Employer or its insurer had paid for any of the
Employee’s medical treatment. The Employee testified that neither Dr. Smith nor Dr. Harrison
billed him for their medical services. He maintained that he stopped seeing Dr. Harrison at the
direction of his Employer. General Manager Frederick Gilbert, who transferred to the Oneida
location some twenty-one months after the report of the injury and sixteen months after the
Employee last saw Dr. Harrison, reviewed the file and found that the Employee had been provided
medical treatment by Dr. Harrison. Gilbert found no indication in the file as to whether the
Employer or its insurance carrier had paid any of the Employee’s medical expenses, but stated that
he would not know whether the Employer had paid the Employee’s bills because the insurance
carrier generally takes care of that.

The trial judge found that the Employee had sustained a compensable aggravation of his pre-
existing arthritis and that his claim was not barred by the statute of limitations, and awarded
permanent partial disability benefits of 36%. In his findings of fact, he concluded that the
cumulative trauma of the Employee’s work on October 28, 2004 “precipitated the pain, permanent
aggravation, and advancement.” Because Dr. Harrison had treated the Employee at the direction of
the Employer within one year of the claim, the trial court ruled that the statute of limitations was
tolled to the date of the last authorized medical treatment and did not bar the action.

II. Standard of Review
The standard of review of issues of fact is de novo upon the record of the trial court,
accompanied by a presumption of correctness of the findings, unless the preponderance of evidence
is otherwise. Tenn. Code Ann. § 50-6-225(e)(2) (2008). In such cases, the reviewing court must
conduct an in-depth examination of the trial court’s factual findings and conclusions. Wilhelm v.
Krogers, 235 S.W.3d 122, 126 (Tenn. 2007). When the trial judge had the opportunity to observe
the witness’ demeanor and to hear in-court testimony, considerable deference must be afforded any
credibility or factual determinations. Tryon v. Saturn Corp., 254 S.W.3d 321, 327 (Tenn. 2008).
A reviewing court may, however, draw its own conclusions about the weight and credibility to be
given to expert medical testimony that is presented by deposition. Crew v. First Source Furniture
Group, 259 S.W.3d 656, 665 (Tenn. 2008). A trial court’s conclusions of law are reviewed de novo
upon the record with no presumption of correctness. Perrin v. Gaylord Entm’t Co., 120 S.W.3d 823,
826 (Tenn. 2003); Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 80 (Tenn. 1996).

III. Analysis
A. Causation

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 The Employer contends that the trial court erred by finding that the Employee sustained a
compensable injury, because the Employee failed to prove that the condition in his right wrist was
causally related to his work activities or that the underlying osteoarthritis disease process was
permanently advanced or aggravated by his work. The Employer specifically contends that the
Employee’s activities unrelated to work, such as carpentry work or throwing horseshoes, could not
have been excluded as potential sources of his condition. The Employer also argues that there was
an absence of any specific injury and that Dr. Harrison’s testimony precluded compensability
because arthritis qualifies as an aging phenomena of unknown causation.

An injury must both “arise out of” and occur “in the course of” employment in order to
qualify as a compensable workers’ compensation claim:

The phrase “in the course of” refers to time, place, and circumstances, and “arising
out of” refers to cause or origin. “[A]n injury by accident to an employee is in the
course of employment if it occurred while he was performing a duty he was
employed to do; and it is an injury arising out of employment if caused by a hazard
incident to such employment.” Generally, an injury arises out of and is in the course
and scope of employment if it has a rational connection to the work and occurs while
the employee is engaged in the duties of his employment.

Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn. 1991) (citations omitted). “Except
in the most obvious, simple and routine cases,” a claimant must establish by expert medical evidence
the causal relationship between the claimed injury and the employment activity. Id. That
relationship must be established by the preponderance of the expert medical testimony, as
supplemented by the lay evidence. “Although causation in a workers’ compensation case cannot be
based upon speculative or conjectural proof, absolute certainty is not required because medical proof
can rarely be certain . . . .” Clark v. Nashville Mach. Elevator Co., 129 S.W. 3d 42, 47 (Tenn. 2004);
see also Glisson v. Mohon Int’l, Inc./Campbell Ray, 185 S.W.3d 348, 354 (Tenn. 2006). All
reasonable doubts as to the causation of an injury and whether the injury arose out of the
employment should be resolved in favor of the employee. Phillips v. A&H Constr. Co., 134 S.W.3d
145, 150 (Tenn. 2004).

Further, an employer takes an employee “as is” and assumes the responsibility for any work-
related injury which might not affect an otherwise healthy person, but which aggravates a pre-
existing injury. Hill v Eagle Bend Mfg., Inc., 942 S.W.2d 483, 488 (Tenn. 1997). In consequence,
an employer is “liable for disability resulting from injuries sustained by an employee arising out of
and in the course of his employment even though it aggravates a previous condition with resulting
disability far greater than otherwise would have been the case.” Baxter v. Smith, 364 S.W.2d 936,
942-43 (Tenn. 1962). The law in this state likewise recognizes that a worker may sustain a
compensable gradual injury as the result of continual exposure to the conditions of employment. See
Cent. Motor Express, Inc. v. Burney, 377 S.W.2d 947, 948-50 (Tenn. 1964). Unlike some other
jurisdictions, there is no requirement in this state that the injury be traceable to a definite moment
in time or triggering event in order to be compensable. Id. at 948.

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 When there is conflicting medical testimony, the trial judge must choose which view to
accredit. In Orman, we provided several factors for consideration, including “the qualifications of
the experts, the circumstances of their examination, the information available to them, and the
evaluation of the importance of that information by other experts.” 803 S.W.2d at 676.

The medical proof in this case was taken by deposition, so the weight and credibility must
be assessed from the contents of the transcripts admitted at trial. In that regard, we may make our
own assessment of the evidence to determine where the preponderance of the evidence lies. Crew,
259 S.W.3d at 665; Wilhelm, 235 S.W.3d at 127. Dr. Harrison, who treated the Employee three
times over a two month period, testified that his medical notes indicated that the Employee had
“denied any specific incident that brought on his symptoms,” and “recalled no remote major trauma
to the wrist.” He found swelling and ordered x-rays, which “revealed obvious degenerative changes
in the [right] radioschaphoid joint.” Dr. Harrison noted some “bogginess” of the Employee’s wrist
condition and diminished motion, and his diagnosis, to a reasonable degree of medical certainty, was
that the Employee was “experiencing arthritis in his right wrist . . . [that] was moderate to severe.”
Because there was no other medical information provided to Dr. Harrison, and because there was
no specific injury noted, he believed that the Employee had “a degenerative condition of the right
wrist, and the etiology is uncertain.” It was his opinion that the cause of the degenerative condition
could not be identified because no other medical history on the Employee existed. He could not
“attribute his work to the etiology of the degenerative arthritis,” explaining that the causation of
arthritis is unknown.

Dr. Kennedy’s medical history of the Employee indicated that a deep pain developed in the
right wrist as a culmination of his work activities on October 28, 2004. After finding “moderate
dorsal radial swelling in the right wrist with readily palpable prominence of the proximal end of the
scaphoid,” Dr. Kennedy, based upon a reasonable degree of medical certainty, made a diagnosis of
“[s]capholunate dissociation with radiolunate osteoarthritis of the right wrist.” He opined that the
Employee’s job responsibilities on October 28, 2004 were “the cause” of the condition, “to the extent
that the work aggravated and advanced the pre-existing separation of the scapholunate bone and the
osteoarthritis and aroused it from a dormant condition not causing any symptoms into a continuously
painful and disabling condition.”

In addition to the medical proof as to causation, we must also consider the testimony of the
Employee, who testified that he had never experienced pain in his wrist when it “went out” and
“knotted up” as he was performing his work duties in October of 2004. He immediately notified his
supervisor and received medical attention from Dr. Smith a few days later, which included x-rays
and physical therapy. He testified that he had received injections from Dr. Harrison, tried to work
within his recommended restrictions, wore a splint, endured the pain, and continued to work with
one hand and no lost time. The trial judge accredited the Employee’s testimony.

Expert medical testimony is crucial to the outcome of this case. In ruling, the trial court
relied on Dr. Kennedy’s assessment that the Employee’s work caused the painful dissociation, the

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work “aggravated and advanced the pre-existing separation of the bone and the arthritis,” and
cumulative trauma “tipped the scale” as to the causation of the injury. Dr. Harrison, while describing
arthritis as an aging phenomena, was less certain. While he did admit that the Employee’s job
activities could “exacerbate [his underlying arthritis] in the way of bringing on symptomatology,”
he could not say whether they worsened the actual pathology of the wrist.

In support of its position, the Employer cites to Cunningham v. Goodyear Tire & Rubber Co.,
811 S.W.2d 888 (Tenn. 1991), wherein recovery was denied even though the “work for Goodyear
aggravated [the employee’s] preexisting condition by making the pain worse but it did not otherwise
injure or advance the severity of his osteoarthritis.” Id. at 891. We ruled that an aggravation of a
pre-existing condition which merely increased the level of pain did not constitute a compensable
injury. Id. at 890-91.

In Trosper v. Armstrong Wood Products, ___ S.W.3d ___ (Tenn. 2008), we faced a situation
similar to the present case. Trosper began working for Armstrong, a manufacturer of flooring
products, in 1993. In 1997 and 1998, he sorted and stacked heavy pieces of lumber. During this
time, he developed pain in both of his hands and was referred to a physician. Trosper continued to
work for Armstrong for several years and was moved at one point to a position moving and stacking
veneer. In 2000 or 2001, he moved to a job, which involved repeatedly lifting forty-five-to-seventy-
pound wire-handled buckets of chemicals to shoulder level and pouring them into a hopper. In 2004,
Trosper was diagnosed with bilateral carpometacarpal osteoarthritis. He had two fusions in his
hands and retired after the second surgery. There was medical testimony that Trosper’s work both
stacking lumber and lifting buckets of chemicals permanently aggravated and advanced the pre-
existing osteoarthritic condition in both of his thumbs and caused the painful instability of those
joints, which ultimately necessitated the surgery. The trial court found that Trosper’s pre-existing
arthritis was worsened and advanced by his work and awarded disability benefits. ___ S.W.3d at
___. On appeal, we determined that our ruling in Smith v. Smith’s Transfer Corp., 735 S.W.2d 221
(Tenn. 1987), provided the proper framework where an employee seeks compensation on the
grounds that a work injury has aggravated a pre-existing condition. In an effort to develop some
clarity in these difficult cases, we adopted the following rule in Trosper:

We reiterate that the employee does not suffer a compensable injury where the work
activity aggravates the pre-existing condition merely by increasing the pain.
However, if the work injury advances the severity of the pre-existing condition, or
if, as a result of the pre-existing condition, the employee suffers a new, distinct injury
other than increased pain, then the work injury is compensable.

___ S.W.3d at ___.

Our examination of the evidence in this case leads us to the conclusion that the Employee
carried his burden of proof by establishing that the work injury advanced the severity of the pre-
existing condition. There was credible testimony from the Employee that the onset of his initial
symptoms were triggered by an accumulation of repetitive actions that manifested itself on October

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28, 2004. Like Trosper, the Employee had a pre-existing, progressive arthritic condition. Drs.
Harrison and Kennedy, who both were well-qualified, agreed that the Employee’s underlying
arthritic condition was not caused by his employment. They also agreed that the condition was
progressive. According to the Employee, the work caused his condition to be symptomatic. Dr.
Kennedy made the following observation:

I concluded that the work that Mr. Cloyd described on October 28, 2004, was the
cause of the painful scapholunate dissociation and osteoarthritis in his right wrist,
that is to the extent that work aggravated and advanced the pre-existing separation
of the scapholunate bone and the osteoarthritis and aroused it from a dormant
condition not causing any symptoms into a continuously painful and disabling
condition.

Although an increase in the level of pain alone is not enough to be compensable, there was evidence
that the incident on October 28, 2004, actually triggered the onset of pain and swelling in the hand.
Dr. Harrison, who diagnosed the arthritis, stated that it was a degenerative and progressive condition
and opined that the Employee’s work – in absence of a specific injury – would not be the cause of
his arthritis. The swelling was apparent, and the range of motion reduced. He further found the
Employee to be a “truthful” patient. Dr. Kennedy identified the Employee’s work as an aggravation
or advancement of the pre-existing condition. He opined that the “cumulative trauma” had “reached
its climax in doing its damage” on October 28, 2004, when the Employee’s wrist “knotted up.”
Because the Employee has shown that he suffered a work injury that advanced the severity of his pre-
existing arthritic condition, we hold that the trial court did not err in compensating him for that
injury.

B. Statute of Limitations
The Employee filed this action to recover workers’ compensation benefits on March 3, 2006.
The incident at work that triggered the onset of the arthritis’ symptomology occurred some sixteen
months prior to that, on October 28, 2004. On that basis, the Employer contends that the suit is
barred by the one-year statute of limitations. Conversely, the Employee argues that the limitations
period was tolled until March 10, 2005, which was the date of his last authorized treatment by Dr.
Harrison. The trial court agreed with the Employee and concluded that because the limitations
period began on that date, the Employee’s claim was not precluded.

The legislature amended the statute of limitations for workers’ compensation claims in
Tennessee in 2004. Because the Employee’s work injury took place prior to January 1, 2005, the
older statutory regime applies. 2004 Tenn. Pub. Acts., ch. 962, §§ 15 & 51. For injuries occurring
prior to January 1, 2005, “[a]ctions or proceedings by an injured employee to determine or recover
compensation” are limited to those filed “one (1) year after the occurrence of the injury, except as
provided in [Tennessee Code Annotated section] 50-6-203.” Tenn. Code Ann. § 50-6-224(a)(1)
(1999). Section 50-6-203 provided as follows:

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 The right to compensation under the Workers’ Compensation Law shall be forever
barred, unless, within one (1) year after the accident resulting in injury or death
occurred, the notice required by § 50-6-202 is given employer and a claim for
compensation under the provisions of this chapter is filed with the tribunal having
jurisdiction to hear and determine the matter; provided, that if within the one-year
period voluntary payments of compensation are paid to the injured person or the
injured person’s dependents, an action to recover any unpaid portion of the
compensation, payable under this chapter, may be instituted within one (1) year from
the latter of the date of the last authorized treatment or the time the employer shall
cease making such payments. . . .

Tenn. Code Ann. § 50-6-203(a) (1999) (emphasis added). Our task is to determine whether the
evidence preponderates against the trial court’s conclusion that the “date of the last authorized
treatment” provision applied, thus tolling the statute of limitations until March 10, 2005.

The Tennessee Rules of Civil Procedure apply to all civil actions; however, the Rules are
subject to any more specific provisions in our Workers’ Compensation Law. Martin v. Lear Corp.,
90 S.W.3d 626, 629-30 (Tenn. 2002). Because Tennessee Code Annotated section 50-6-203
contains no language addressing the burden as to the applicability of the statute of limitations, cases
decided under the Rules are instructive. The statute of limitations is an affirmative defense, Tenn.
R. Civ. P. 8.03; therefore, the burden of proof rests upon the defendant. Ingram v. Earthman, 993
S.W.2d 611, 632-33 (Tenn. Ct. App. 1998); Jones v. Hamilton County, 405 S.W.2d 775, 779 (Tenn.
Ct. App. 1965); see also Blankenship v. Mars, Inc., No. 03S01-9709-CH-00105, 1999 WL 77257,
at *3 (Tenn. Workers’ Comp. Panel Feb. 18, 1999) (citing Lunsford v. A.C. Lawrence Leather Co.,
225 S.W.2d 66, 69 (Tenn. 1949)) (“[T]he employer has the burden of proof to establish facts which
the employer claims as a bar to the [workers’] compensation claim, such as the expiration of the
statute of limitations.”). When, however, a defendant establishes an affirmative defense, the burden
shifts to the plaintiff to demonstrate a recognized exception. Earthman, 993 S.W.2d at 633; Jones
v. Coal Creek Mining & Mfg. Co., 180 S.W. 179, 182 (Tenn. 1915); see also Bradshaw v. Claridy,
375 S.W.2d 852, 856 (Tenn. 1964) (holding that where a workers’ compensation claim is prima facie
barred by the one-year statute of limitations, the claimant bears the burden of proof to show that his
claim falls within an exception that would permit his action to go forward).

Circumstantial evidence may be used to preclude a defendant’s reliance upon the statute of
limitations in a workers’ compensation case. Giles County Bd. of Educ. v. Hickman, 547 S.W.2d
944, 946 (Tenn. 1977). Here, there was circumstantial evidence that the Employer compensated the
Employee within the one-year period after the injury, thus tolling the limitations period prescribed
in Tennessee Code Annotated section 50-6-203 to the date of the last authorized medical service.
To meet his burden of proof, the Employee need not show that his medical bills were actually paid
by the Employer. Blocker v. Reg’l Med. Ctr. at Memphis, 722 S.W.2d 660, 662-63 (Tenn. 1987)
(“[T]he expenses of medical care or treatment actually rendered by a designated physician to whom
the employee has been referred by the employer need not be paid in fact to constitute voluntary

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compensation within the meaning of T.C.A. § 50-6-203.”); Crowder v. Klopman Mills, 627 S.W.2d
930, 932 (Tenn. 1982). We have previously held that

“voluntary payments of compensation” by the employer or his insurer which will toll
the running of the statute of limitations . . . may consist of the furnishing of medical
services through physicians or others employed by the employer or his insurer and
. . . , in such cases, the statute will not begin to run until such medical services are
terminated, i.e., the date of the last services thus furnished, rather than the date of
payment for such services.

Norton Co. v. Coffin, 553 S.W.2d 751, 752-53 (Tenn. 1977) (citing Fields v. Lowe Furniture Corp.,
415 S.W.2d 340, 343 (Tenn. 1967); see also Bowen v. Frito Lay, Inc., No.
M2002-02552-WC-R3-CV, 2004 WL 913244, at *5-6 (Tenn. Workers’ Comp. Panel Apr. 30, 2004).

The Employer referred the Employee to Dr. Smith, who made a referral to Dr. Harrison, a
specialist in the field of orthopedic surgery. The Employee, who testified that the Employer set up
the first appointment with Dr. Harrison, saw Dr. Harrison three times, receiving treatment in the
form of prescribed anti-inflammatory medications and a steroid injection. The Employee testified
that after the third visit on March 10, 2005, his Employer terminated the treatment. The Employee
never received a bill for any of the treatment he received from either Dr. Smith or Dr. Harrison.
Although the new general manager at the plant asserted that the Employee’s file included no
indication that the Employer had paid any of the medical bills, he had no knowledge of the actual
circumstances. He also explained that the insurance carrier would have ordinarily taken care of that.
From all of this, we conclude that the evidence does not preponderate against the trial court’s
conclusion that the suit was not barred by the statute of limitations.2

C. Excessive Award
Finally, the Employer claims that the trial court’s award of an impairment rating of 24%
times the statutory cap of 1.5, or 36%, the maximum possible, is excessive and unwarranted. We
have held that the work injury on October 28, 2004 was compensable because it advanced the
severity of the Employee’s pre-existing arthritic condition. Dr. Kennedy, the last doctor to examine
the Employee’s wrist, placed several restrictions on work activities in an effort to minimize the risk
of the Employee sustaining further damage to his wrist. Moreover, the evidence establishes that the
Employee continued to have pain, swelling, and a limited range of motion in his wrist. His disability
limited his activities outside of the workplace. Although the Employee returned to work for the
Employer in his former position, vocational disability is “measured not by whether the employee can
return to [his] former job, but whether [he] has suffered a decrease in [his] ability to earn a living.”

2
Because we find that the evidence did not preponderate against the trial court’s finding that date of the last
authorized treatment tolled the one-year statute of limitations, we need not reach the Employee’s alternative argument
that the lawsuit was timely because the extent of his disability was not clear until his visit to Dr. Kennedy in February
2006. See Hibner v. St. Paul Mercury Ins. Co., 619 S.W .2d 109, 110 (Tenn. 1981) (“It is now settled that the date the
employee’s disability manifests itself to a person of reasonable diligence, not the date of the accident, triggers the statute
of limitations.”)

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Lang v. Nissan N. Am., Inc., 170 S.W.3d 564, 570 (Tenn. 2005) (quoting Walker v. Saturn Corp.,
986 S.W.2d 204, 208 (Tenn. 1998)). The evidence does not, therefore, preponderate against the
disability benefits finding by the trial court.

IV. Conclusion
The judgment of the trial court is affirmed. Costs are taxed to the Employer, Hartco Flooring
Company, and its surety, for which execution may issue if necessary.

_________________________________
GARY R. WADE, JUSTICE

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