### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON May 21 , 2002 Ses sion JOHN C. FLOWERS v. JOSEPH E. TUR NER and CONNIE T URNER An Appeal from the Circuit Court for Madison County No. C 98-249-I Roy B. Morgan, Jr., Judge

No. W2001-01429-COA-R3-CV - Filed January 14, 2003

This is a personal injury c ase arising out of an automobile accident. The plaintiff truck driver, during the course of his employment , was involved in an automobile accident with the defendant. The plaintiff sued the defendant based on the injuries he sustained in th e accident. The defendant stipulated as to liability , and the c ase wen t to trial on the issue of damages. After trial, the jury returned a verdict in favor of the plaintiff for past and future pain and suffering and past medical bills. The trial cour

t en tered a judgment on the verdict and denied the plaintiff’s motion for an additur and/or a new tria l. The pla

intiff ap peals, a sserting

that ther e was no material

evidenc e to support the low amount of the jury’s ve rdict, and appealingthe order allowing the defendant to offset the verdict by the a

mount paid in satisfaction of the workers’ com pensation lien . We affirm the deci sion of the le arned trial judge, finding materia l evidence in the record to support the jury ’s verdict and affirming the order pe rmitting the offset. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed
H OLLY K IRB Y L ILL ARD , J., delivered the opinion of the court, in which A LAN E. H IGHERS , J., and D AVID R. F ARMER , J., joined. Mitchell G . Tollison, Humboldt, Tennessee, for the appell ant, John C. F lowers. Howard B. Hayden, Me

mphis, Tennessee, for the appellees, Joseph E. Turner and Connie Turner.

OPINION On August 8, 1997, Plaintiff/App ella nt John Flowers (“Flowers”) was involved in an automobile

accident with Defendant/Appellant Joseph E. Turner (“Tu rne r” ) i n M ad is on Co un ty, Tennessee. Flower s and Tur ner wer e traveling in op

posit e direc tio ns on a two-lane road. Turner was driving a Ford Taurus owned by his mother, Defendant/Appellant Connie Turner, and Flowers was driving an eighteen-whee l truck in the course of

his employment as a truck dr iver with American Freig htway s, Inc. (“Americ an Freightway s”). The road was slick from rain. While both parties were-2-

negotiating a curve

going in opposite

directio ns, Turne

r lost con trol of hiscar and

hit Flower s’ truck, knocking off the front of Flowers’ truck and breaking the truck’s axle. The next day , on August 9, 1997 , Flower s went to th e Jackson- Madison Coun ty G eneral Hospital because

he was “ extremely

so re.” S ubsequently, Flowe rs was treated by

his company authorized physician, Paul Schwartz, M.D. (“D r. Schwartz”). For three or four m onths after the acciden t, Flowers underwent phy sical therapy for pain in the left side of his neck and his left shoulder. Flowers testified that he did not miss any work beca use of the accident, though his duties were restricted. When phy sical the

rapy failed to resolv e Flo wers’ pr

oblems, Dr . Schwar

tz refer red him to Glenn Barnett, M.D. (“Dr. Glenn Ba rnett”), a neurosurgeon, for further evaluation. Dr. Glenn Barne tt diagnosed Flowers as having a preexisting herniated disc at C-6 that was aggravated by the accide nt. Surgery

was neither suggested nor performed at

that time. On May

4, 1998, F

lowers to ld D r. Glenn B arnett th at he had improved

and had li

ttle or no n

eck pain , and he r

equeste d a full releas e to return to work without restrictions. Realizing that he did not want to continue performing all the phy sical fun

ctions of his job at American Freightway s, Flowers le ft Am er ic an Fr ei gh tw ays andtook a job with AIM Trucking (“AI M”) in June

or July 1998. Flo wers sai d that the new job di d notinvolve lo ading o

r unloading fre

ight. F lowers’ sal ary at AIM was appr oximately the same as his salary a t American Freightway s. On Octobe

r 21, 1998 , Flower s returned to see Dr. Glenn Barnett, complaining of constant pain in hisneck and occasional pain across both his shoulders. Dr. Glenn Barnett treated Flowers andultimately discharg ed him withoutrestrictions, but gave him a permanent impairment rating of 5% and a recommendation that he enga ge only in light duty work as opposed to truc k driving. On March 15, 1999, Flowers visited Robert Barnett, M.D. (“Dr. Robert Barnett”), for evaluation. Dr. Robert Barnett assigned Flowe rs a 10% permanent impairment rating and placed a one-time lifting r estricti on on him to l

ift no more

than 30 to 4 0 pounds. B oth Dr. Rob ert Bar nett and Dr. Glenn Barnett causally related Flowers’ agg

ravated herniated disc to the accident. With respec t to future medical expe nses, Dr . Glenn B arnett te stified th at it was “mor

e likely than not” that

Flower s would require dis c surge ry in the future. He acknowledge d, however, that the future surgery

“may come

to pass if his symptoms warranted a nd worsened a s tim e goes on,” and s aid that “ he may neve r need t o have [sur gery] if hi s sympto ms are not b ad eno ugh .” Dr. Rober t Barne tt was less committal, stating that “I don’t know [if Flowers will require disc surgery ]. I don’t think anybody

really knows.” After the accident with Turner’s vehicle, Flowe rs sustained other injuries. On Ap ril 2 5, 1998, Flower s was s truck in hi s right shoul der by a thr own bo x wei ghing th ir ty- five pounds. Flo wers sought emergency room treatment for this injury, but explained that the only reason h e sought such treatment was because his employ er required him to do so for workers’ compensation purposes . On May 3, 1999, Flowe rs sprained his ankle, and sought emergency

room attention for1 On May 17, 1999 , Flowers moved to amend his complaint to add as a def

endant “ unnamed but s erved Defendant the uninsured/underins ured motorist carrier St. Paul Fire an d M arine In suranc e Co mpa ny,” and to increa se the ad damnum of the complai nt f rom $100,000 t o $500,000. On Septe mber 30, 1999, that moti on was gran ted by agreement of the parties. On February 10, 2 000 , howe ver, Flo wers filed a notic e of no n-suit as to th e add ed d efend ant, St. Paul Fire and Marine Insurance Com pany. Accordingly, on February 14, 2000, the tri al court dis miss ed St. Paul f

rom the l awsuit

with out preju dice. -3- this as well. On September 1, 1999, Flowers sustained a workers’ compensation injury when h e steppedfrom a th

ree-fo ot drop. This injury required e mergency room treatment as well as two follow-up visits to a physician. None of these injuries were reported to Flowers’ treating phy sician, Dr. Glenn Ba

rnett. F lowers e xplained th at he did

nottell Dr. Glenn Barnett about the subsequent incident s because they

were “minor.” When Dr. Glenn Barnett was asked in his deposition whether Flowers being struck on the shoulder by a thirty-five poundbox would pos sibly aggr avate or cause progression of his herniated disc, Dr. Glenn B arnett replied in the affirmative. On August 6, 1998, Fl owers filed this la wsuit ag ainst Tur

ner and h is mother ( collectively “the Turners”) for his personal injuries resulting from theautomobile accide nt. 1 On December 21, 2000, the parties filed a stipulation in which the Turners stipulated as to liability and the application of the family purpose doctrine. As a result, Connie Turner was liable for the damages caused by her son’s negligent conduct. Also on December

21, 2000, the parties filed a stipulation, which read as follows:
In his deposition on Apr il 27, 1999, Dr. Glen

n Barne tt testified that it

is likely t hat [Flowers] will undergo cervical disc surge ry in the future. T

he following ar e re as on ab le an d n ec es sa ry c os ts of su ch su rg er y: 1. Neuro logist $8,338.00 2. Anesthesiolog ist $1,375.00 3. Hos pital charge $7,300.00 4. Physical therapy $2,600.00

_________ $19,613.00 The case was tried before a jury on February

28, 2001, and March 1, 2001. Flowers testified as set fo rthabove, and the deposition of Dr. Glenn Barnett and D r. Robert Barnett were admitted into evidence. After the

conclusion of trial on March 1, 2001, the jury returned a verdict

in favor of2 The amount of credi t reques ted was ac tual ly $8, 010.39, but $500 repres ented the cost of a deposit ion whi ch was no t paid pursu ant to A meric an Fr eightwa ys’ statutory lien

.

3 The motion as sert ed that the Turner s’ i nsuranc e carri er was r equired t o reimburs e A meri can F reightw ays pursu ant to Tenne ssee Code Annot ated § 50-6- 112. -4- Flower s, awarding damages in the total a mount of $26,500. The speci al jury verdict form categ orized the

damage s as follow s: NON-ECO NOMIC DAMAGES: (a) Pain and Suffe

ring- Pa st $ 5,000.00 (b) Pain and Suffering- Future $ 15,000.00 (c) Permanent Impa

irment $ 0.00 (d) Loss of Abil

ity t o Enjoy Life -Past $ 0.00 (e) Loss of Ability

to Enjoy L

ife-Future $ 0.00 ECONOMI

C DAMAGES: (f) Med ical Tre atment- Pa st $ 6,500.00 (g) Medical Treatment- F uture $ 0.00 (h) Loss of Ear

ning Cap acity -Past $ 0.00 (I) L oss of Earning Capacity -Future $ 0.00 TOTAL DAMAGES $ 26,500.00 On March 29 , 2001, the

Turnersfiled a moti on to offset orcredit th e jury verdict with $7,510.39, 2 which the Turners’ insuran ce carrier had paid directly to Flowers’ former employ er, AmericanFreig

htway s, to reimburse the company for medical bills paid to Flowers or on Flowe rs’ behalf on his workers’ compensation claim stemming

from the a

utomobile a

ccident

. 3 On the sa

me da y, Flowers filed

a m ot io n f or an ad di tu r o r, al te rn at iv el y, for a new trial. In tha t motion, Flowers argued that the ju

ry ’s failur

e to awa rd any amount wit

h respect t o future med ical expe nses, permanent

impairment, past pain and suffering, and past and fu ture loss of earning capacity was contrary to th e evidenc e submitte d at trial , and that the amoun

t actuall y a warded was so low

as to be outside the realm of reasonableness. I n addition, Flowers claimed that thejury’s failure to award an amount for

futur e med ical exp enses was con trary to the pa rties’ stipulation that the cost of cervical disc sur gery

would b e $19,613.00. In the alternative, F lowers argued that the trial court-5-

should, in its role as thirteenth juror, findthat the jury’s ver dict was not supported by the weight of the evidenc e and ord

er a new trial. On April 11, 2 001, Flow ers file d a respons e to the Tu rners’ motion for an offset, arguing that the req ues ted offs et should b e denied because the Turne

rs’ payment was voluntary a

nd be cause

they did not ple ad the pa

yme nt as an a

ffirmat ive defe nse pursuant to Tennessee Rule of Civil Procedure 8.03. On April 30, 2001, the trial court entered a judgment

in accor dance with the jur

y’ s verdic t. On June 4, 200 1, th e tria l cour t ente red an o rder gr anting the Tu rners credit for the advanced payment of $7,510.39 made to A merican Fr eightway s to satisfy the worker s’ compensation lien. Thus, the total judgment awarded to Flower s was $18, 989.61 ($26,500 minus $7,510.39) plus discretionary

costs. Also on June 4, the trial court entered an order deny

ing Flowers’ motion for an additur a nd/or a ne w trial. F lowers no w appea

ls from the

trial cou rt’s orde rs. On appeal, Flowers argue s that the trial court erred in deny ing his motion for anadditur or for a new trial, and in granting the Turners’ motion for a n offset. He argues further that there was no material evidence to support the jury’s failure

to award an amount

for futu re medic al expense s, particularly in lig

htof the parties’ stipulation that the amount of such expenses would be $19,613. Flowers also asse

rts that there wa s no mater ial evide nce to sup

port th e jury’s failure

to award damages for per

manent a natomica l injury and its fa

ilure to award dam ages f

or past or future lo st earning ca pa ci ty. Flower s assertsthat the ju ry ’s awar d was so in adequa

te that the trial cou rt should have suggested an

additur in

an amount

that would

have re asonably

compensa

ted him for

his injuries. Finally, Flowe

rs argues that the Turners wer e required to plead the claimed offset as a n affirmative defense, and

that their failure to do so resulted in a waiver of their claim for an offset. In the alternative, Flowers contends that the trial court e rred in offsetting his recovery for $7,510.39, when the jury a

warded only $6,500 in medic al expenses. When the trial

court ap proves th e jury ’s verdi ct and de

nies a motion for an additur and/or a new trial, “we presume that the trial court properly discharged its role as thirteenth juror, Holden v. Rannick , 682 S.W.2d 903, 905 (Tenn. 1984), and limit our factual review to determining whether the record containsmateria

l evidenc e that sup

ports the verdict.” Pettus v. H urst , 882 S.W.2d 783, 788 (Tenn. Ct . App. 199 3); see Tenn. R. App. P. 13(d). The appellate court does not reweig h the evidence or determine w here the pre ponderance lies. Reynolds v. Ozark Motor Lines, Inc. , 887 S.W.2d 822, 823 (Tenn. 1994). Rather, absent an error of law, a judgment on a jury verdict will be set aside only wher

e the record contains no material evidence to support the ve rdict. See Foster v. Bue , 749 S.W.2d 736, 741 (Tenn. 1988). Flowers first argues that there was no mater ial evidenc e to suppor

t the jury ’s failur

e to award any reasona ble futur e medica l expenses , particularly

in light of the parties’ agreement that $19,613 would be the re asonable

and nec essary

cost o f cervical di sc surgery . He argues that Dr. Glenn Barne tt testified that it was more likely than not, i.e. proba ble, that he would have to undergo surgery for his he rniated disc in the

future, and that h

is testimon

y w as uncon

tradicted in the record. From our review of the record , howe ver, Dr . Glen n Barne tt’s testi mony that Flower s wil l lik ely undergo surgery in th e future is undercut to some extent by his other statements, such as “[Flowers] may-6-

never needto have [su

rgery ] if his sy mptoms are

not bad enough.”Theref ore, his testimony

overall was less clear than Flowers asserts, and the jury was e

ntitled to view his testimony as a whole. Also, the jury was entitled to consider Dr. Robert

Barnett’s lack of

conviction that such surgery would be required in the future, particularly his statement that “I don’t know [if Flower s will req uire disc surgery ]. I don’t think any body really

knows .” Furthermore, the jury was e ntitled to consider Dr. Glenn Barnett’s opi nion r egarding causation as being undermined in part by the fact that Flowers never told him about the thirty -five pound box striking his shoulder in April 1998. From this, the jury was entitled t o conclud e that, even if it were

likely that Flow ers would

underg o surge

ry in future, the surgery

would not be caused solely by the automobile accident. See Pettus , 882 S.W.2d at 788 (upholding a jury verdict when the record contained material evidence that the plaintiff’s medical expenses were caused by factor s other than the a utomobile a

ccident ). Thus, u nder the se circumstance s, we find that mate rial evidence supported the jury’s decision not to award damages for future medical expenses.
We also find that there was material evidence to support the jury’s fa

ilure to award damages for permane nt anatom ical impa irment. F lowers notes th at Dr. Glenn Barnett gave Flowe rs a 5% permanent disabil ity ratin g, and t hat Dr . Rob ert Barn ett gav e Flowe rs a 10 % disa bili ty rating. Flowers argues that, because this evide

nce is unc ontradicted, the j ury was oblig ated to a

ward him an amount for at least a portion of his permanent impairment. Aga in, however, there is e

vidence in the record indicating that the permanent disability could have been caused, or at least ag gravat ed, by subsequent events of which Dr. Glenn Barne tt was unaware. The jury was entitled to conclude from this evidence that any

permane nt disability w as not ca

used by the acc ident, an d c on se qu en tl y, that Flowers was not entitled to recover for per manent disability. Flowers also arg

ues on ap peal tha t there w as no mate

rial evid ence to support the jury’s refusal to award him damages for lost earning capa c ity, past or future. F lowers testified that he modified his work activities because of his injur

ies from t he acci dent, and

that he eventuall

y le ft his job at Ameri can Fr

eightw ay s to take a

nother jo b that re quired le ss manual labor. H e claime d that, after he lef t h is job at American Freightway s, he earned approximately half of the amount he had earned as a truck driver. Flowers offered evidence that he did not have “readily transferrable” job skills, that he was restricted by 35%-40% in the job market, and that h e would e arn appr

oximately $21,000 less per yea

r for 14 y ea rs, which amounted to $213,857.52. However, Flowers acknowledged

that he missed no time from American Freightwa ys due to the accident, and that he earned more money the y

ear after the accident than he did the year of

the acciden t. The record includes evidenc e that Fl owers los this job at AIM in 1999 because the compa ny closed down, and that he later lost a job as a dispatcher with the Tennessee Highw ay Patrol beca use the officein which he was work

ing clos ed down. T

hus, based on the evidence submitted at trial, the jury was entitled to conclude that any

loss in earning capacity

was due t o factor s o ther tha n the subject acci dent. Therefore, in li ght of

the record, we must conclude that there is materia l evidence to support the jury’s ref usal to award Flowers damage s for loss of past and future earning ca pacity.4 In his r eply bri ef, Flowers a ssert s that the offset should also be reduced by attorney’s f ees he paid in attempti ng to recover on his workers’ compensation clai m, thereby reducing the allow able o ffset to $4 ,335 .50. T his argum ent is withou t merit. -7- Flowers also asserts on appeal that an additur was necessary

because the jury ’s verdict was so inadequat e as to shock the conscience of the Court or, in the alternative, the jury ’s verdict was basedon passion prejudice, or unaccountable capric e. Bas ed o n our review of the record, we conclude that the jury’s awa rd of $26,500 is not

disproportionate to Flowers’ injuries and does not shock the conscience of

the Court. Thus, we c onclude t hat the tr ial cour t did not err in dec lining to suggest an additur under the circ umstances. Finally, Flowe

rs argues that the trial court erred in allowing the Turners a $7,510.39offset for amounts pa

id insatisfaction of the workers’ compensation lien. First, Flowers contends that the Turners ’ claim must be considered waived because the y di d not p lead the offset as an affirmative defense or a compulsory c ounterclaim. Flowers cites no law i n supp ort of this a sser

tion. We conclude that the money paid by the Turners’ insurance carrie r to satisfy

the workers’ compensation lien was mere

ly a n advanc e pay

ment of jud

gment. In such a situation, the Turners are excused “from pleading or

proving partial pay

ment by [the] insurer , which wa s not a def ense as t o liability , but a mitigation in [the] event of liability.” Howard v. Ab ernathy , 751 S.W.2d 432, 435 (Tenn. Ct. App. 1988); see Melton v. Firestone Tire & Rubber Co. , 625 S.W.2d 713, 714 (T enn. 1981) (in a worker s’ compensa

tion conte xt, holding

that set- off is not a

n affirmative defense) ; see also Br own v. City of Memphis , No. 02A01-9803-CV-00069, 1998 WL 742385, at *5 (Tenn. Ct. App. Oct. 22, 1998) (agreeing with the obser vation in Howard

that the making of advance pay ments is “a humanitarian practice that should be encourag ed and commended”). Flowers also argues that the amount of the offset should not have e xceeded the amo unt of medical expenses proven at trial, or $6,500. 4 Again, Flowers cites no law to support this assertion. Tennessee Code Annotated § 50-6-112 gives an inj ured worker the right to acc ept work ers’ compensation benefit s from his employer a nd also seek to recover for his injurie s from a th

ird-par ty tortfeasor. Section 50-6-112(c)(1) gives an employer a subrog ation lien

agains t such re covery

“to the extent of actual payment of benefits.” Cross v. Pan Am World Servs., Inc. , 749 S.W.2d 29, 30 (Tenn. 1987); Tenn. Code Ann. § 50-6-112(c)(1) (1999). Bec ause the trial cou rt gave the defe ndants an offset in an amount equal to the actual pay ment of benefits, this argument is without merit. Ac co rd in gl y, the decision of the trial court is affir med. Costs a

re to be t axed to the

appella nt, Jo hn C. Fl ow er s, an d h is su re ty, fo r w hi ch ex ec ut io n m ay i ss ue , i f n ec es sa ry.

___________________________________ HOLL Y KIRBY L

IL LARD, JUDGE