41.

Facts : Cynthia G. Clarendon, the plaintiff, was a registered nurse at Baptist Memorial Hospital in Memphis. On Sunday, 25 September 1988, plaintiff helped two other nurses lift a two to three hundred pound patient up in bed. Plaintiff did not feel any repercussions until the next day; on Monday she felt "achy." Plaintiff was off work Monday and Tuesday, but reported as scheduled on Wednesday. Concerning the pain, plaintiff testified that she thought she had "pulled something." The pain increased, however, two-fold through the day. The pain increased again on Thursday, although she did not work.

Friday was plaintiff's next scheduled day to work, but she decided to see Dr. James
Galyon first. At this time, the pain had increased intensively, and as a result, she was dragging her left leg and foot. Dr. Galyon prescribed one week of bed rest and some medication for plaintiff. Plaintiff telephoned the hospital from the doctor's office and spoke with Beverly Owens, a co-worker. Ms. Owens testified that plaintiff "said she was at the doctor's office because she had injured her back a couple of days ago at work."

Plaintiff testified that she told Ms. Owens her injury occurred on Sunday. Plaintiff also asked Ms. Owens to inform defendant (Baptist Memorial Hospital) of her injury, which she did when she talked with the charge nurse. On Tuesday, 4 October, plaintiff telephoned her supervisor, Donna Ray, and told her what had happened.

On 17 November 1988 Dr. Kaplan operated to remove the L-4, L-5 disc herniation on the left. Dr. Kaplan testified that the injury was consistent with the history given by plaintiff. He also opined that a slow onset of pain over a four-day period can occur with a disc herniation. Dr. Kaplan placed a forty- pound weight limit on plaintiff and stated that she sustained a ten percent permanent partial impairment to the body as a whole. Dr. Kaplan released plaintiff to return to work on 27 February 1989, but due to a prior, unrelated knee injury she could not return until a later date. Before she could resume working, plaintiff was injured again when a neighbor's dog knocked her to the ground. At the time of this trial, plaintiff was unable to work due to this subsequent injury.

After the trial, the chancellor awarded plaintiff benefits for an eighty percent permanent partial disability to the body as a whole and for all medical expenses incurred. Defendant (Baptist Memorial Hospital) brings this appeal and raises several issues, foremost being that plaintiff did not prove that the injury arose out of and in the course of her employment.

Defendant seems to rely upon the facts that plaintiff did not feel any immediate pain when lifting the patient and Dr. Kaplan stated that a person with a disc herniation may not be aware of any trauma. It is argued, therefore, that the injury could have occurred anytime.

Dr. Kaplan also testified, however, that the injury is consistent with the events of the week of 25 September 1988.

Court Decision: In a workmen's compensation case, a trial judge may properly predicate an award on medical testimony to the effect that a given incident "could be" the cause of the plaintiff's injury, when he also has before him lay testimony from which it may reasonably be inferred that the incident was in fact the cause of the injury.

In the present case, Dr. Kaplan's testimony provides the medical proof that plaintiff's employment could be the cause of her injury. In addition, it may reasonably be inferred from plaintiff's testimony that the lifting incident was the cause of the disc herniation. The
trial court found that the evidence was sufficient on the causation issue, and we affirm because the preponderance of the evidence is not otherwise. There is no evidence that the injury occurred in any way other than as plaintiff testified.

Defendant's second argument is that Plaintiff's failure to follow the notice requirements disqualifies her from any workers' compensation award.

The statute says:

Every injured employee or his representative shall, immediately upon the occurrence of an injury, or as soon thereafter as is reasonable and practicable, give or cause to be given to the employer who has not actual notice, written notice of the injury, and the employee shall not be entitled to physician's fees or to any compensation which may have accrued under the provisions of the Workers' Compensation Law from the date of the accident to the giving of such notice, unless it can be shown that the employer had actual knowledge of the accident; and no compensation shall be payable under the provisions of this chapter unless such written notice is given the employer within thirty (30) days after the occurrence of the accident, unless reasonable excuse for failure to give such notice is made to the satisfaction of the tribunal to which the claim for compensation may be presented.

Plaintiff lifted the heavy patient on 25 September, and a pain in her lower back increased throughout the week. On Friday, plaintiff went to see her doctor. After Dr. Galyon's diagnosis, plaintiff called defendant and talked with Ms. Owens. It is undisputed that plaintiff told Ms. Owens that she injured herself at work and that Ms. Owens should inform defendant of this situation. Ms. Owens did, in fact, notify the charge nurse of the accident and injury. Plaintiff also personally notified her supervisor by telephone four days later Thus, the "actual knowledge" requirement of the statute was fulfilled.

Clarendon v. Baptist Memorial Hospital, 796 S.W. 2d 685; 1990 Tenn.

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