Pridgen, Raymond v. Texas Roadhouse Holdings, LLC

FILED
Mar 21, 2024
08:27 AM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Raymond Pridgen ) Docket No. 2020-03-0904
)
v. ) State File No. 57394-2019
)
Texas Roadhouse Holdings, LLC, et al. )
)
)
Appeal from the Court of Workers’ ) Heard February 7, 2024,
Compensation Claims ) in Knoxville
Pamela B. Johnson, Judge )

Affirmed and Certified as Final

In this appeal, the employer contends the trial court erred in denying its motion for
summary judgment, in concluding that the employee’s alleged injury was compensable,
and in awarding the employee permanent total disability benefits. The employee, a
restaurant worker, reported that while he was in a designated break area outside the
restaurant waiting for his ride, an opossum ran from behind a dumpster and startled him,
causing him to fall and sustain injuries to his shoulder and back. The employer moved
for summary judgment, asserting that the employee’s injury did not arise primarily out of
or in the course and scope of his employment. Following a compensation hearing, the
trial court denied the employer’s motion and concluded that, based on the totality of the
evidence and relevant precedent, the employee’s injuries arose out of and in the course
and scope of his employment. The court also concluded, based in part on expert
vocational testimony, that the employee was permanently and totally disabled as a result
of the accident. The employer has appealed. After careful consideration of the record
and the arguments of counsel, we affirm the trial court’s order and certify it as final.

Judge Pele I. Godkin delivered the opinion of the Appeals Board in which Presiding
Judge Timothy W. Conner and Judge Meredith B. Weaver joined.

Gregory H. Fuller and Tiffany B. Sherrill, Knoxville, Tennessee, for the employer-
appellant, Texas Roadhouse Holdings, LLC

Peter Frech, Nashville, Tennessee, for the employee-appellee, Raymond Pridgen

1
Factual and Procedural Background

On July 22, 2019, sometime after 11:00 p.m., Raymond Pridgen (“Employee”),
who worked in the kitchen of a restaurant owned by Texas Roadhouse Holdings, LLC
(“Employer”), went to a designated smoking area behind the restaurant to wait for his
ride home. While Employee waited, an opossum ran out from behind a dumpster and
startled Employee. As a result, Employee fell and reported suffering pain in his right
shoulder and back. A co-worker, Justin Massey, stated that he had clocked out at 11:14
p.m. and was with Employee when the incident occurred. Employee reported the
incident to Employer’s kitchen manager, Janie Lay, immediately after it occurred. Ms.
Lay indicated that Employee had clocked out at 11:00 p.m. and fell in the dock area after
he had finished his shift. 1 She completed a First Report of Work Injury based on
surveillance footage that showed the injury occurred at 11:40 p.m. 2

Employee testified that, when he was hired, he informed Employer he did not have
a driver’s license and would need to arrange alternative transportation to and from work.
It was common for one of Employee’s relatives to drop him off at work and pick him up
after his shift. In addition, employees were allowed to smoke in a designated area behind
the restaurant, and employees would often wait for rides in that location as well. The
designated smoking area was located near some dumpsters and grease barrels. Mr.
Massey testified that opossums and other small animals were often seen near the
dumpsters and grease barrels.

Employer accepted the claim as compensable and provided a panel of physicians,
from which Employee selected Dr. Matthew Rappe. An MRI revealed a “massive”
rotator cuff tear, and Dr. Rappe performed surgery in October 2019. On June 1, 2020,
Dr. Rappe placed Employee at maximum medical improvement and assigned a three
percent impairment rating with no permanent restrictions.

Employee testified that although he tried to return to work at another restaurant, he
was unable to perform his job duties due to shoulder pain. In July 2020, he was seen
again by Dr. Rappe and reported difficulty with reaching and lifting. A subsequent MRI
revealed a retear of the rotator cuff, and Dr. Rappe performed a second surgery in
September 2020. In July 2021, Employee again reported weakness with overhead lifting,
and a third MRI revealed another retear of his rotator cuff. Following discussion of
possible revision surgery, Employee and Dr. Rappe agreed to proceed with conservative
treatment instead. Eventually, Dr. Rappe placed Employee at maximum medical
improvement on February 25, 2022, revised his permanent medical impairment rating to
1
Neither Employee nor Ms. Lay could remember if Employee clocked himself out or if Ms. Lay clocked
him out after the timekeeping program Employer used completed an automated report.
2
Employer initially accepted the claim as compensable but later elected to deny the claim. By the time
the denial decision had been made, the surveillance video was no longer available.

2
seven percent, and assigned permanent restrictions of no overhead lifting or lifting more
than five pounds with his right arm.

Employee was also seen by Dr. David Hovis for an employer’s examination in
December 2021. Dr. Hovis assigned a six percent impairment rating and provided
permanent restrictions of no overhead work or lifting over ten pounds. Dr. Hovis noted
that a reverse shoulder replacement could improve Employee’s symptoms but stated that,
even with such a surgery, Employee would have permanent restrictions “with an unlikely
return to productive work.” The parties elected to seek another evaluation from a
physician on the Bureau’s Medical Impairment Rating Registry (“MIRR”). 3 Dr. Patrick
Bolt, the MIRR physician, also assigned a seven percent impairment rating.

Employee filed a petition for benefit determination on July 28, 2020, in an effort
to obtain his wage records from Employer. 4 On May 11, 2022, Employer filed a petition
for settlement approval only, but the case did not settle. Finally, on June 24, 2022,
Employee filed another petition for benefit determination seeking mediation and, if
mediation proved unsuccessful, a trial. A dispute certification notice (“DCN”) was
issued on August 18, 2022, listing the injured body parts as the right shoulder and back
and identifying temporary and permanent disability benefits as the disputed issues.
Employer also raised as defenses Employee’s refusal to accept a modified duty position
and a possible intervening event. It also raised as a disputed issue the extent of
Employee’s permanent disability. Following a post-discovery mediation, a final DCN
was issued in May 2023 identifying the injured body part as the back and listing as
disputed issues compensability and permanent and temporary disability benefits.
Employer also identified causation, whether the injury occurred in the course and scope
of employment, and Employee’s alleged refusal to accept modified work as defenses.
Employer filed a motion for summary judgment on June 20, 2023, and the court issued a
notice that it would hear Employer’s motion on August 9, 2023, the same date as the
compensation hearing.

At trial, Employee, Mr. Massey, Ms. Lay, and the parties’ vocational experts
testified live, while expert medical proof was submitted via deposition transcripts.
During his direct examination, Employee testified that, after the work incident, he
attempted to return to work with Employer but experienced swelling in his right hand and
arm and, following his first surgery, was unable to raise his right arm overhead. Upon
reaching maximum medical improvement, Employee testified that he contacted Ms. Lay
about returning to work. He testified that Employer told him they would contact him if a
job became available and, despite following up, he never heard back from Employer.
Employee stated he attempted to work at other restaurants but was unable to lift his right
3
See Tenn. Code Ann. § 50-6-204(d)(4).
4
The outcome of that petition is unclear, as there is no subsequent documentation in the technical record
concerning that dispute.

3
arm, could only work limited hours, and eventually had to quit because the work became
too painful.

Employee testified that he is fifty years old and obtained his GED after quitting
high school in the tenth grade. He attended business school for one semester but testified
he cannot use a computer or type efficiently. Employee worked in the construction
industry before transitioning to the restaurant industry. As a restaurant worker, his duties
included ordering and stocking supplies, preparing food, and cleaning, with lifting
requirements up to sixty pounds. He claimed he is unable to return to that type of work.
He also testified that he now experiences chronic right arm pain, often wears a sling, and
utilizes a Tens unit for pain. He cannot move his arm above his chest or behind his back
and has trouble completing daily activities. He also testified to worsening peripheral
neuropathy caused by his diabetes, which makes it difficult to stand for more than an
hour. Employee also reported suffering a stroke following the work injury, which
necessitates the use of a cane to walk. Finally, he testified he still does not have a license
and only drives out of necessity on occasion.

During her testimony, Ms. Lay agreed that Employee had asked to return to work.
However, she testified that he told her he had restrictions that prevented him from using
his right arm, but he did not provide documentation of those restrictions. She also
testified that she may have been able to modify a job in order to accommodate his
restrictions, but there was no attempt to bring Employee back in a modified position.

Vocational experts Dana Stoller and Michael Galloway testified for Employee and
Employer, respectively. Ms. Stoller described Employee’s pre-injury work as falling in
the medium-to-heavy physical demand category. She noted that Employee had “no
limitations that precluded him from the ability to maintain suitable and gainful
employment prior to this work injury” and that, at the time of the work incident,
Employee was required to lift and carry up to 100 pounds, stand throughout his shift,
frequently reach above his shoulders, and constantly handle items while working in a
fast-paced environment. Ms. Stoller relied on Dr. Rappe’s statements assigning
Employee permanent restrictions of no lifting greater than five pounds on the right side
and no overhead work. She concluded Employee does not possess transferrable job skills
and is not able to perform his activities of daily living without assistance. She noted that
Employee had attempted to return to work but was physically unable to perform his job
duties. On cross-examination, Ms. Stoller agreed that her evaluation took place over the
phone and that she was not aware he used a cane or had issues with his back. Ultimately,
she determined that he sustained a significant loss of access to the local labor market,
testifying that “there’s no work that this individual can perform in the open economy.”

Mr. Galloway testified to a similar understanding of Employee’s job history. He
noted that Employee had attempted to return to work post-injury on at least two occasions
but was unable to perform his job. Mr. Galloway was aware of Employee’s pre-existing

4
medical issues, including chronic low back pain, neuropathy, sleep apnea, diabetes, and a
previous right knee injury. Mr. Galloway believed that, following his work injury,
Employee was able to complete personal hygiene tasks and meal preparation, but he
needed his son’s assistance for other tasks and relied on his left arm in certain
circumstances. Mr. Galloway concluded that Employee retained a 90% vocational
disability following the work injury, based on Dr. Rappe’s and Dr. Hovis’s permanent
restrictions, his age, educational and vocational profile, and the labor market. When also
considering Employee’s non-work-related medical conditions and self-reported
limitations, Mr. Galloway opined that Employee was likely unable to work.

In its motion for summary judgment, which the court heard immediately prior to
conducting the compensation hearing, Employer asserted that Employee’s injury did not
arise out of or in the course and scope of his employment. In support of its motion,
Employer argued that Employee was not working or performing duties on behalf of
Employer at the time of the incident but was simply present at the location, waiting for
his son to pick him up. Employer further argued that the incident happened at 11:40 pm,
well after Employee’s shift had ended. In response, Employee argued he was waiting for
his son to pick him up from work, which was an activity incident to his employment and
in which Employer had acquiesced, given Employee’s inability to drive himself. Further,
Employee asserted he could not remember whether he had clocked out at the time of the
injury and disputed the time of the incident itself. The court took the motion under
advisement at trial but later denied Employer’s motion for summary judgment in its
order, concluding that the parties disputed certain material facts regarding the time
Employee’s shift had ended and the time of the incident, which would require it to assess
witness credibility and weigh evidence. The court further determined that Employer
failed to negate an essential element of Employee’s claim or demonstrate that his
evidence was insufficient to establish an entitlement to benefits.

The court then turned to the evidence presented during trial, first considering the
threshold issue of whether Employee’s injury arose primarily out of and in the course and
scope of his employment. In considering this issue, the Court focused on both the
premises liability rule and the personal comfort doctrine. 5 In doing so, the court looked
at the evidence offered at trial establishing that Employee was in a designated area of
Employer’s premises waiting for his ride, which was permitted by Employer, when the
incident occurred. There is no dispute as to the sequence of events resulting in
Employee’s injury or that Employee was engaged in activities of which Employer was
aware and in which Employer had acquiesced.

5
Although the court used the term “premises liability” in its order, its analysis was based on a common
doctrine applied in workers’ compensation cases known as the “premises rule.” The premises rule is used
to determine whether the worker was injured on an employer’s premises, which encompasses not only the
area where an employee performs work activities, but any area within the boundaries of the employer’s
premises, including parking areas and access roads. See, e.g., Durant v. Saturn Corp., No. M2003-00566-
WC-R3-CV, 2004 Tenn. LEXIS 353, at *2 (Tenn. Workers’ Comp. App. Panel Apr. 30, 2004).

5
The trial court, relying on Rowe v. Mitsubishi Motors North America, Inc., No.
2020-06-0646, 2021 TN Wrk. Comp. App. Bd. LEXIS 15 (Tenn. Workers’ Comp. App.
Bd. May 28, 2021), noted that the course of employment “includes not only the time for
which the employee is actually paid but also a reasonable time during which the
employee is necessarily on the employer’s premises while passing to or from the place
where the work is actually done.” Id. at *8. The court also relied on Jacobs v.
Bridgestone Americas Tires Operations, LLC, No. 2017-05-0132, 2018 TN Wrk. Comp.
App. Bd. LEXIS 4, at *11-15 (Tenn. Workers’ Comp. App. Bd. Feb. 7, 2018), for the
general proposition that, under the personal comfort doctrine, injuries suffered by
employees while on approved or authorized breaks are deemed to have arisen out of and
occurred in the course and scope of employment.

Next, Employer argued that, because Employee had been clocked out forty
minutes prior to the incident, the personal comfort doctrine should not apply and his mere
presence on Employer’s premises was not determinative. It argued he was simply
socializing with another co-worker well after his shift had ended when the injury
occurred and, as a result, the injury neither arose out of the employment nor occurred in
the course and scope of the employment. In finding that Employee’s injury arose
primarily out of and in the course and scope of his employment, the trial court noted it
was “not persuaded that [Employee] in fact clocked out at 11:00 p.m. or that the incident
occurred forty minutes after he clocked out.” Further, the court determined that even if
the incident occurred forty minutes after Employee had clocked out, this was a reasonable
time for him to have remained on Employer’s premises given the need for him to wait for
a ride, and this fact was not sufficient to bar his claim for benefits.

In determining the extent of Employee’s medical impairment, the trial court
weighed the medical opinions offered by Dr. Rappe, the authorized treating physician;
Dr. Bolt, the MIRR physician; and Dr. Hovis, the physician Employer retained to
examine Employee. Although Dr. Rappe first assigned a 3% impairment rating, he later
revised it to 7% after recurrent tears and a revision surgery. His opinion concerning the
degree of impairment carried a presumption of correctness pursuant to Tennessee Code
Annotated section 50-6-204(k)(7). Dr. Bolt, the MIRR physician, provided the same
impairment rating, and the court noted that the presumption applicable to his impairment
opinion may only be rebutted by clear and convincing evidence pursuant to Tennessee
Code Annotated section 50-6-204(d)(4). Dr. Hovis assigned a 6% impairment rating, and
the trial court concluded his opinion failed to rebut the presumption of correctness
afforded the opinions of Drs. Rappe and Bolt. In addition, Dr. Hovis had conceded that
the opinions of the other physicians were reasonable and did not explain why his was
more accurate.

Finally, the court considered the extent of Employee’s permanent disability. In
doing so, it considered Employee’s medical impairment, job skills, education, age,
training, and job opportunities and the expert vocational opinions. The court also relied

6
on the expert medical proof submitted by the parties and Employee’s testimony regarding
his condition and ability to return to work. In support of its determination that Employee
was permanently and totally disabled, the court noted that Employee testified that he was
unable to return to any type of gainful employment, was 50 years old, had obtained his
GED, and had a work history of construction and restaurant industry work, which
included medium-to-heavy physical demands. The court accepted testimony that
established Employee retained a 7% impairment and had permanent restrictions of no
lifting greater than five to ten pounds with his right arm and no overhead work. The
court also concluded that Employee’s permanent restrictions limited him to sedentary or
light work in unskilled jobs. Ultimately, the court found the preponderance of the
evidence established that Employee was permanently and totally disabled and awarded
him benefits pursuant to Tennessee Code Annotated section 50-6-207(4)(A)(i).
Employer has appealed.

Standard of Review

The standard we apply in reviewing a trial court’s decision presumes that the
court’s factual findings are correct unless the preponderance of the evidence is otherwise.
See Tenn. Code Ann. § 50-6-239(c)(7) (2023). When the trial judge has had the
opportunity to observe a witness’s demeanor and to hear in-court testimony, we give
considerable deference to factual findings made by the trial court. Madden v. Holland
Grp. of Tenn., Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar
deference need be afforded the trial court’s findings based upon documentary evidence.”
Goodman v. Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at
*6 (Tenn. Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and
application of statutes and regulations are questions of law that are reviewed de novo with
no presumption of correctness afforded the trial court’s conclusions. See Mansell v.
Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are
also mindful of our obligation to construe the workers’ compensation statutes “fairly,
impartially, and in accordance with basic principles of statutory construction” and in a
way that does not favor either the employee or the employer. Tenn. Code Ann. § 50-6-
116 (2023).

Analysis

Employer raises four issues in its notice of appeal: (1) whether the trial court erred
in finding Employee’s injury occurred during the course and scope of and arose primarily
out of his employment; (2) whether Employee was entitled to benefits for his shoulder
injury despite not identifying the shoulder as an injured body part in his petitions for
benefit determination or post-discovery dispute certification notice; (3) whether the court
should have relied on Dr. Rappe’s original 3% impairment rating; and (4) whether the
trial court erred in determining Employee was permanently and totally disabled as a
result of his work injury.

7
Course and Scope of Employment

First, Employer asserts the trial court erred in finding that Employee’s injury
occurred in the course and scope of his employment. Specifically, it maintains that
Employee was “undisputedly not working at the time of the injury” and that he “was not
in the process of leaving the Employer when the injury occurred . . . [and] was unsure
what it was that he was doing.” Instead, Employer contends Employee was simply
“hanging out” instead of doing anything to benefit Employer.

The requirements that an injury must “arise out of” and occur “in the course of”
employment are not synonymous, although both elements exist to ensure a work
connection to the injury for which the employee seeks benefits. Wait v. Travelers Indem.
Co. of Illinois, 240 S.W.3d 225 (Tenn. 2007). The term “in the course of” refers to the
time, place, and circumstances of the injury, while “arising out of” refers to causation.
Cloyd v. Hartco Flooring Co., 274 S.W.3d 643 (Tenn. 2008).

Employer argues that the facts of this case are similar to Higgins v. Big K Food
Market & Liquors, Inc., No. 2014-01-0007, 2014 TN Wrk. Comp. App. Bd. LEXIS 3
(Tenn. Workers’ Comp. App. Bd. Dec. 8, 2014). In Higgins, the employee was told to
come to work in the morning to observe deliveries of certain products. Id. at *2. At
approximately 11:00 a.m., when the deliveries were completed, the employee was told he
could leave the employer’s premises and return when his shift started at 6:00 p.m. Id.
About two and a half hours later, the employee was still on the employer’s premises
when he allegedly suffered injuries. Id. at *2-3. The trial court denied benefits, and the
employee appealed. Id. at *4. On appeal, the employee failed to file a transcript or
statement of the evidence, so, consistent with established Tennessee law, we presumed
the trial court’s findings were supported by sufficient evidence and affirmed the trial
court. Id. at *8-9. Notably, we did not reach the merits of the appeal, including whether
the employee’s presence at the employer’s premises under these circumstances gave rise
to a compensable injury.

The facts of this case are distinguishable from Higgins. Here, Employee was not
asked to leave the premises and did not remain on the premises for over two hours after
his shift ended prior to the work accident. In fact, Employer was aware that Employee
usually waited for his son to pick him up at the end of his shift, and it was customary for
employees to smoke or gather in the designated area behind the restaurant before, during,
or after their shifts. In short, we conclude the result we reached in Higgins does not
support Employer’s position.

Instead, we find Carter v. Volunteer Apparel, Inc., 833 S.W.2d 492 (Tenn. 1992)
to be instructive. In Carter, the employee testified that she arrived at the break room
provided by the employer around 7:10 a.m., approximately 20 minutes before her shift
began and that it was customary for employees to gather in the break area prior to

8
clocking in and beginning work. Id. at 493. The trial court noted that the employer
permitted employees to arrive early and drink coffee or smoke with fellow employees.
Id. In addressing the merits of the case, the court stated that, pursuant to Lollar v. Wal-
Mart Stores, Inc., 767 S.W.2d 143 (Tenn. 1989), the determinative issue was whether the
employee’s injury occurred during a time when it was reasonable for the employee to be
on the employer’s premises. Id. The trial court had denied the claim, but, on appeal, the
Tennessee Supreme Court reversed, stating:

[T]he “course of employment” includes not only the time for which the
employee is actually paid but also a reasonable time during which the
employee is necessarily on the employer’s premises while passing to or
from the place where the work is actually done.

We are of the opinion that injuries occurring on the premises at a
reasonable time before work begins are “in the course of employment” even
though this period is technically outside the regular hours of employment.

Id. at 494. The Court also noted as follows:

Professor Larson lists four situations in which the course of employment
goes beyond an employee’s fixed hours of work: the time spent going and
coming on the premises; an interval before working hours while waiting to
begin or making preparations, and a similar interval after hours; regular
unpaid rest periods taken on the premises; and unpaid lunch hours on the
premises. It is obvious that “in the course of employment” for employees
having a fixed time and place to work, embraces a reasonable interval
before and after official working hours while the employee is on the
premises engaged in preparatory or incidental acts.

Id. (citations omitted) (emphases added). The court then explained that “[w]hat
constitutes a reasonable interval depends not only on the length of time involved but also
on the circumstances occasioning the interval and the nature of the employee’s activity.”
Id. In concluding the employee’s injury occurred in the course and scope of the
employment, the Court held that the employer had “acquiesced in the custom of its
employees having pre-work breaks to the point that it became a regular incident of
Plaintiff’s employment.” Id. at 496. In fact, the Court found it “significant that the
employer did provide a break area for its employees and the employer acquiesced in and
created the custom of pre-work breaks.” Id. at 495.

We find the Supreme Court’s rationale in Carter to be particularly relevant to the
present case. Here, Employer acknowledged that its employees were allowed to smoke
or wait for rides in the designated break area after work. Further, Employee testified that
he waited for his son to pick him up after every work shift. Employer was aware that

9
Employee needed transportation to and from work because he did not have a driver’s
license. Thus, it was customary for Employee to wait for transportation after his shift had
ended, and Employer had acquiesced in this practice. Although there is conflicting
testimony as to whether Employee or someone else clocked him out, the outer limits of
the contested timeframe between which Employee’s shift ended and the incident occurred
is no more than 40 minutes. Given Employer’s acquiescence in allowing employees to
stay on premises in the designated break area and wait for rides or mingle with co-
workers without any stated limit, we conclude the evidence does not preponderate against
the trial court’s conclusion that this was a reasonable amount of time to remain on the
premises and, therefore, Employee’s injury occurred in the course and scope of the
employment. 6

Shoulder Injury

Employer next asserts that the trial court erred by awarding benefits for
Employee’s shoulder despite his failure to list that body part in either of the petitions he
had filed or the final dispute certification notice. In support of its contention, Employer
points to Tennessee Code Annotated section 50-6-239(b)(1), which provides, in relevant
part,

Unless permission has been granted by the workers’ compensation judge,
only issues that have been certified by a workers’ compensation mediator
within a dispute certification notice may be presented to the workers
compensation judge for adjudication.

Employer contends that Employee’s alleged shoulder injury was not a “certified” issue
and, therefore, could only be heard by the trial court if the factors identified in Tennessee
Code Annotated section 50-6-239(b)(2)(A)-(B) were satisfied. Conversely, Employee
contends that Employer failed to file a notice of denial and voluntarily provided workers’
compensation benefits for his shoulder injury, including authorizing a panel-selected
physician and paying for two surgeries, physical therapy, and diagnostic tests, as well as
paying temporary disability benefits. Employee also asserts that Employer did not
indicate compensability was a disputed issue on the first dispute certification notice, with
the only issue being the extent of Employee’s impairment rating. Moreover, Employee
noted that the petition for benefit determination filed by Employer for a settlement
approval listed the shoulder as the injured body part.

At trial, Employer acknowledged that the statute says a mediator must certify a
“disputed issue,” not a particular body part. It also agreed it had filed a petition for
settlement approval that listed the right shoulder as the injured body part. Employer
6
As we have concluded the injury occurred within a “reasonable interval” of his shift ending as outlined by the
Carter court, we do not need to analyze Employer’s argument that the personal comfort doctrine does not apply to
an incident occurring after a shift has ended.

10
provided no authority in support of its argument that a petition for benefit determination
or a DCN must list every body part allegedly injured in a work incident. Thus, we find
no merit in Employer’s argument that the shoulder injury could not be properly
considered by the trial court under the circumstances presented in this case.

Evidence of Intervening Accident

Third, Employer asserts that Employee should be limited to the 3% impairment
rating initially assigned by Dr. Rappe. Specifically, Employer contends that, after
reaching maximum medical improvement on June 1, 2020, Employee suffered a retear in
his shoulder while working for a new employer. Consequently, Employer argues
Employee suffered a new and distinct injury, and it should not be responsible for any
additional impairment. However, as noted by the trial court, Employer offered no
evidence in support of its argument that Employee sustained an intervening injury that
would relieve it of the obligation to pay benefits based on Dr. Rappe’s revised
impairment rating. Employee testified that he worked three to four days for an employer
in June 2020 but could not lift his arm to perform his job duties. He later attempted to
work another job at a different restaurant but was unable to work an entire shift due to
pain from trying to prepare food. He denied any new injury or re-injury at either job.
There was no evidence Employee reported a new injury to either subsequent employer.
More importantly, Employer offered no medical evidence that Employee had suffered a
new and distinct injury causing the re-tear in his shoulder. Thus, we conclude the
evidence does not preponderate against the trial court’s findings as to this issue.

Permanent Total Disability

Finally, Employer argues the evidence does not support the trial court’s finding
that Employee is permanently and totally disabled as a result of his work injury. It points
to Mr. Galloway’s vocational assessment indicating there are multiple jobs Employee
could perform based only on the permanent restrictions arising from his work injury.
Further, Employer argues that the conditions that keep Employee from being able to
obtain employment in the open labor market are not work-related, as it is undisputed that
Employee suffers from several significant health conditions that limit his physical
capabilities beyond the limitations caused by the work injury, as noted by Mr. Galloway.

An injured worker is permanently and totally disabled when “an injury not
otherwise specifically provided for in this chapter totally incapacitates the employee from
working at an occupation that brings the employee an income.” Tenn. Code Ann. § 50-6-
207(4)(B) (2023). As the Tennessee Supreme Court’s Special Workers’ Compensation
Appeals Panel has observed, a trial court must

consider[] a variety of factors in making this determination, so that its
decision results from having a complete picture of the employee’s ability to

11
obtain gainful employment post-injury. Such factors include the
employee’s skills, training, education, age, local job opportunities, and
ability to work at the available jobs in his post-injury condition. Although
vocational experts often present an assessment of these factors at trial, the
employee’s testimony concerning his ability or inability to return to gainful
employment is competent testimony that should be considered. The extent
of an injured employee’s vocational disability is a question of fact for the
trial court to determine from all of the evidence presented by the parties,
including lay and expert testimony.

Duignan v. Stowers Mach. Corp., No. E2018-01120-SC-R3-WC, 2019 Tenn. LEXIS 224,
at *21-22 (Tenn. Workers’ Comp. Panel June 19, 2019) (internal citations and quotation
marks omitted).

In determining Employee’s permanent vocational disability, the trial court
considered Employee’s age, job skills, education, training, the impairment ratings, and
job opportunities in his community, as well as his testimony regarding his condition and
ability or inability to return to work. The court noted he was 50 years old and had a
GED. Although Employee testified to taking some college courses, it is unclear from the
record whether any such classes are relevant to his current employability. Employee’s
previous work history consists of medium-to-heavy work, and he is now restricted from
overhead lifting and lifting anything greater than 5 or 10 pounds with his right arm. The
court noted that Ms. Stoller provided an opinion that Employee is permanently and totally
disabled as a result of the work accident. Ms. Stoller testified that Employee has “very
limited” basic computer skills and determined that “based upon the clear and convincing
evidence, there’s no work that [Employee] can perform in the open economy.” She noted
Employee was able to work prior to this work injury and had attempted to return to work
several times post-injury, showing a “motivation to at least try to obtain some type of
suitable and gainful employment.” He was ultimately unsuccessful in his efforts to return
to work in the restaurant industry. When asked about Mr. Galloway’s vocational
assessment of Employee, Ms. Stoller testified that she completed a labor market survey
prior to trial and could not find any of the jobs he listed as available in the local labor
market given Employee’s permanent restrictions. Further, she noted that the types of
positions Mr. Galloway listed, including cashiers, gate attendants, assemblers, and
inspectors, often require the use of both arms in a repetitive manner, which Employee
would be unable to do on a consistent basis.

Mr. Galloway testified that Employee would retain a 90% vocational disability
even without considering any co-morbid conditions but would likely be unable to work
when considering such non-work-related conditions. He agreed with Ms. Stoller that
Employee could not return to his pre-injury occupation. On cross-examination, Mr.
Galloway acknowledged that the possible job titles he had listed generally required the
use of both arms and required repetitive movements and fine manipulation skills. He

12
admitted that if Employee “can’t do repetitive activities and he can’t pick up objects, he
can’t use his fingers, he can’t reach outwards, that’s significant in the world of work.”
Employee testified that although he does have preexisting medical conditions, he was
able to work full-time prior to the work accident, and his inability to work only started
after this injury. Moreover, he stated no permanent restrictions were assigned regarding
any prior injuries or medical conditions. In addition, Employee’s son testified that his
father “worked his whole life” and if there was “any pain . . . he’d get over it and go into
work.”

We conclude the issue of whether the evidence supports a finding of permanent
total disability is close. Employee’s impairment rating and permanent physical
restrictions arising from the work accident prevent Employee from returning to jobs
classified in the medium or heavy physical demand categories, but they do not
necessarily exclude jobs in the light or sedentary categories. Yet, it is undisputed that
Employee made attempts to return to work, though unsuccessful, and his testimony
regarding his own physical limitations is competent and relevant. See Hubble v. Dyer
Nursing Home, 188 S.W.3d 525, 536 (Tenn. 2006). Although he has a GED and some
college-level courses, his testimony regarding his limitations in typing and computer
work was unrefuted. Ms. Stoller’s testimony supports a finding of permanent total
disability, and Mr. Galloway’s testimony was somewhat equivocal given that he admitted
Employee would have a hard time working if he cannot consistently use his arms and
hands. In sum, we conclude the trial court appropriately considered the totality of the
evidence, including Employee’s testimony regarding his attempts to return to work and
his physical limitations. Moreover, we accord deference to the trial court’s assessment of
the credibility of Employee’s in-court testimony. As such, we are unable to conclude the
evidence preponderates against the court’s determination that Employee is permanently
and totally disabled as a result of the work injury.

Conclusion

For the foregoing reasons, we affirm the trial court’s order and certify it as final.
Costs on appeal are taxed to Employer.

13
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Raymond Pridgen ) Docket No. 2020-03-0904
)
v. ) State File No. 57394-2019
)
Texas Roadhouse Holdings, LLC, et al. )
)
)
Appeal from the Court of Workers’ ) Heard February 7, 2024
Compensation Claims ) in Knoxville
Pamela B. Johnson, Judge )

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced
case was sent to the following recipients by the following methods of service on this the 21st day
of March, 2024.

Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Tiffany B. Sherrill X tbsherrill@mijs.com
ghfuller@mijs.com
Peter Frech X pfrech@forthepeople.com
vjean@forthepeople.com
Pamela B. Johnson, Judge X Via Electronic Mail
Kenneth M. Switzer, Chief Judge X Via Electronic Mail
Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov
Workers’ Compensation Claims

Olivia Yearwood
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov