### IN THE S UP REME COURT OF TENNESS EE AT KNOXVI LLE Ma y 2, 200 7 S es sio n

MICH AEL W IL HEL M v. KROG ERS, d/ b/ a PEYT ON’S SOUTH EASTE RN

Appeal by p erm ission from the Sup rem e CourtSpecial Workers’ Com pensation Ap peals Panel

Circuit Court for Bradley County No. V-04-884 Law rence H. P uckett, Judge

No. E2006-00268-SC-WCM -WC - F iled on Au gust 17, 2007

I n 2 00 4, the pla int if

f, Mic ha e l Wilh e lm, fi le d a wo rk e rs ’ c omp e ns atio n c la im a lle g ingan in jur y to his back a nd left hip. I n response , the def endant, Kr og ers d/b/a Pey ton’s Southeastern, de nied the

c la im, a sse rt ingthat the inj ur ie s did no t ari se ou t of his e mpl oy me nt. At the c on c lus ion

of the tr ia l, the trial cour

t awar ded the plaintiff a

35% per manent par

tial disabilit y

to the body as a whole. The Special Workers’ Compensation Ap peals Pane l affir med the judg ment. Be cause , howeve r, the injuries do not quali fy as work-r elated a nd an ea rlier wor kers’ compensation settlement bars

rec overy , the judg ment must be reve rsed a nd the ca se dismissed.

Tenn. Cod e Ann. § 50-6-225(e ); F ind ings of F act and Conclusion s of L aw of the Special Wo r ke r s’ Co m pe nsa ti on A ppe als P ane l Re je c te d; Ca se Di sm iss e d

G AR Y R. W ADE , J ., delivere d the opinion of the cour t, in which J ANI CE M. H O LDER and C O R N E LIA A. C LARK , J J
., and E. R I L EY ANDE R S ON , S P .J
., joined.

L isa L . Conner, Chattanoog a, Tenne ssee, for the appe llant, Krog ers, d/b/a Pey ton’s Southeastern.

H. F ra nk lin Cha nc e y , Cl e ve land , T e nn e sse e , f or the a pp e lle e , M ic ha e l Wilh e lm.

OP IN ION

I. F ac tu al a nd P r oc e dur al B ac kgr ound

Michae l W i l h el m (“the Plaintiff”), now 38 y ear s old, beg an wor king f or Krog ers, d/b/a/ Pey ton’s Southeastern (“the Def endant” ) in 1998 as a “ca se picker ,” a posit i o n t h at requires

“ ste pp ingup a nd

ste pp ingdo wn

and li ft in g he a vy

c a se s” fo r l oa din g int o tr uc ks fo r s hip me nt. S e v e r a l m o n t h s l a t e r , h e r

u p tu r e d h i s r i g h tA c h i l l e s t e n d o nw h i l e o nth e j o b

. A s a r e s u l t o f h i s i n j u r y, the Plaintiff develope d sy mptoms of reflex sy

mpathetic dy strophy (“RSD”) , a condition that ca uses2

him to ex perie nce sha

rp pain a nd swelling in his lower rig ht ext remity

. Since t he ti me of the origina l injury , the Plaintiff has wa lked with a pronounc ed limp.

I n a medica l deposition related to the 1999 injury , Dr. J. P atters o n Stone, the treating ph y sic ian, te sti fi e d th a t th e Pla int if f’ s li mp wo uld lik e ly c a

us e le ft hip and

low e r b a c k p ro ble ms i n the future

. I n another deposition related t o the earlier injury
, the P laintiff ac knowledg ed that one of his do c tor s h a d in fo rm e d h im that he wo uld e xpe ri e nc e low e r b a c k a

nd le ft hip pr ob le ms b e c a

us e of his g a it.

I n 2003, the first cla im was settled. The judg ment approvingthe settlement s p e c if ic a lly noted that treating phy sician had ma de a f inding of an 11% pe rmane nt partial impairment to the lower extremity . The orde r fur

ther provide d that “[i] n an effort to compromise their differe nces, a ll parties have ag ree d upon a lum p sum pay ment

. . . in full and final settlement of a ll claims of whateve r kind or nature due to t he P laintiff under the [ worke rs’] compensation law of Tenne ssee.” The a g ree ment direc ted that the Plaintiff would also fur ther rece ive any and all rea sonable a nd nece ssary

medical treatment in the future whic h direc tly and natur ally

resulted f rom the 1999 injury

.
After the settlement, the Plaintiff wa s assig n ed a lig ht duty position i n the “tote r oom,” an

are a wh e re pla sti c bo xes, we ig hin g a pp ro xima te ly thr e e po un ds wh e n emp ty , ar e fi lle d with or de rs

. The Plaintiff, who could perf orm his duties while seated, re moved old labels fr om the box es and the n hungthe m on an ove rh e a d co nv e y or be lt f or dis tr ibutio n thro ug ho ut t

he pla nt. He te sti fi e d th a t hi s d u t i e s r e qu i r e d

h i m t o w a l k

a p p r o x i m a t e l y 2 5 0

- 3 0 0 yar d s e a c h d ay.

After clockingin on May

1, 2004, the P laintiff felt a “pop” whil e walking to his work station and then e x perie nced pa in in his lowe r bac k and lef t hip area . He wa s place d in a whee lchair, tre ated by the company

nurse, a nd then transpor

ted to his vehicle. A f

ew day s later, the Plaintiff wa s examined by

Dea n Coulter, a phy sical thera pist who perfor

ms contrac t work for

the Def endant. The Plaintiff complained to th e t h er ap i s t t h at “this was the se cond time in three y ear s that [t his] has happene d to me.” Dr . Steven Will iams, a chiropr actor , and Dr s. Rickey Hutcheson a

nd Elmer Pinz on, orthopae dic phy sicians, also trea ted the Plaintiff.

I n his worker s’ compensation claim for the i mpairment t o his left hip and bac k, the Plaintiff admitted that his new injuries we re a direc t result of his 1999 ruptured A chilles. He a rg ued, howeve r, that bec ause the more rec ent injury aff ecte d an entirely separ ate part of his body , he wa s entitled to additional perma nent partial disability

benef its. Bec ause his Ac hilles rupture a rose out of and occur

red in the course and scope of his e mploy ment with the Def

endant, Plaintiff ar g ued that his pain was not idiopathic but the re sult of his deteriorating c onditi o n o cc u rr ing dir ectly and natura lly as a conseque nce of the orig inal compensa ble injury . I n response , the Def endant c ontended that the 20 04 c on dit ion

de ve lop e d a s a

dir e c t r e su lt o f t

he lim p c a us e d b y the 19 99 inj ur

y . B e c a us e the RSD and the anta lgic g ait (adopte d to d ea l wi t h pain) we re a ppare nt at the time of the prior settlement, the De fenda

nt a rg ued that no additional perma nent par tial disabilit y

should be awa

rded.

At trial, the Plaintiff introduced the deposition of Dr. Sean Br own, a phy siatrist, a phy sician3

who combines the spe cialties of or thopaedics, r

heumatolog y , and neur ology into one prac tice ar ea. After evaluating the Plainti ff in 2005, Dr . Br own deter mined that walking had ca used the ba ck and hip pa in the Plaintiff e x perie nced in 2004. He obser ved that the RSD ca

used the Plaintiff to “fa

vor his hip, left hip” causing“more weig ht bear ing on i t , ” explaining that be cause RSD is a nerve problem often oc curr ing a fter a traumatic injury , complications deve lop over time “ with the signs showing up in the bone itself.” H e desc ribed RSD as a ve ry p ai n fu l condition with no cure. D r. Br own believe d that the hip and lower back condition w as separ ate f rom the RSD. I t was his opinion that the Plaintiff’s awkw ard limp would eve ntually nece ssitate left hip repla ceme nt s u rge ry

. Dr. Br own assesse d a 20% impairme nt t o t h e left hip, a 6% impairment to the bac k, and a c ombined impairment of 14% to the body as a w hole.

Dr. McKinley Lundy
, who also testified by deposition, e x amined the Plaintiff in November of 2005 at the r equest of the Def endant. He also made a diag nosis of RSD, whic h he desc ribed a s

a “ c omp le x re g ion a l pa in s y nd ro me .” He fu

rt he r d e te rm ine d th a t th e Plai nt iff ha d c hr on ic trocha nteric bur sitis of the left hip, which was more likely than not cause d by the abnorma l g ait. Dr. Lundy found no impairment to t h e P l ai n t i ff’ s back, but found 7% impairment to the left lower extremity and 3% to the body as a whole. Dr. Lundy rec alled that the Plaintiff ente red his off ice on

c rutc he s. He la te r o bs e rv e d h im w a lk u na ssi ste d in

the pa rk ingare a fo r a pp ro xima te ly

sixty fe e t.

I n 2005, the Def

endant discharg ed the Plaintiff when he le ft work be fore the end of his shift without contacting his supervi s o r. Until that occurr ence , the Def endant ha d allowed the Plaintiff intermittent leave in orde r to transport his depende nt f ather to me dical appointments. B eca use the Pla int if f h a d o c c a sio na lly

a bu se d th e pr ivi le g e , h owe ver , a nd ha d b e e n p re vio us ly

wa rn e d a g a ins t doing so, his employ

ment was ter

minated af

ter the 2005 inc ident.

The trial c ourt conclude d that the P laintiff’s back i njury occur red as he walked t o his workstation, that his increase d pain was the result of his employ ment, and that the c laim was, there fore
, compensa ble. The c ourt awa

rded a 35% vocational impairment to the body as a whole a nd held that
t h e s e t t l e m e n tf

o r t h e p r e v i o u s i n

j u r y w a s f o r a s p e c i f i c s c h e d u l e d m e mb e r , t h e r i g h tl o w e r

e x t r e m i t y, and that ther e wa s no injury to the left hip and the ba ck at that time. Whil e the tria l court desc ribed the 20 04 inj ur

y a s “th e natur a l and pr ob a ble re su lt of his pr ior

c omp e ns a

ble on the job inj ur

y to h is op po sit e e xtre mity

in 1 99 9, ” it a lso ru le d th a t th e Pla int if f wa s e nti tle d to a se c on d re c ov e ry be c a us e the se ttl e me nt o n th e fi rs t c la im d id n ot i nc lud e the anatom ic a l are a s c ov e re d in the la tte r c la im.

Un l i k e t h e trial c ourt, the Specia l Workers’ Compensation Appea ls Panel determined that the Plaintiff’s injury was an idiopathic event; howeve r, the Panel conclude d that beca use wa lking as much a s six hundred y ards da ily was a h az ard incident to employ ment, the injury

was compensa ble. The Pane l further

observe d that beca

use the 2004 injury

had not manife sted itself at the tim e of

the se ttl e me nt, the pr ior

se ttl e me nt d id n ot b ar t

he c la im.4 II. Scope of

Review and Ap plicabl e Law

I n worke rs’ c ompens at ion case s, we re view the tria l court’s finding s of fa ct de novo

acc ompanied by

a pre sumption of c orre ctness unless the evidenc e pre ponderates otherwise . Tenn. Code Ann. § 50-6- 225(e) (2) ( Supp. 2006); L ay v. Scott Count y

Sheriff’ s Dep’t, 109 S.W.3d 293, 296 (Tenn. 2003) . “This standar d of re view req u i re s us to ex amine, in depth, a tr ial court’s f actua l finding s and conclusions.” Galloway v. Memphis D rum Serv., 822 S.W .2d 584, 586 (Tenn. 1991) (citing Orman v. Williams S onoma, I nc., 803 S.W.2d 672, 675 (Tenn. 1991)). When there are no materia l fac ts in disput e, howeve r, we revie w the trial court’s ruling de novo with no pre sumption of cor rec tness. Vinson v. United Parce l Serv., 92 S.W .3d 380, 384 (Tenn. 2002). Our standa rd of revie w of que stions of law is de novo wit h no presumption of cor rec tness. Perrin v. Ga

y lord Entm’t Co., 120 S.W .3d 823, 826 (Tenn. 2003)

.
When the trial judge has seen and heard the witnesses, espec ially if issues of cr edibility

and weig ht to be g iven ora l testimony are involved, “conside rable defe renc e is aff orded the trial court’ s finding s of fa ct.” L ong v. Tri-Con I nds., L td., 996 S.W

. 2 d 1 73, 177 (Tenn. 1999) . I f medica l testim o n y is p r e s e n te d

b y d e p o s it io n , th is Co u r

t m ay ma k e an“ in d e p e n d e n t a s s e s s me n t o f the medical pr oof to deter

mine wher e the preponde ranc e of the evidence lies.” Conner B ros. Excavating Co. v. L ong , 98 S.W .3d 656, 660 (Tenn. 2003) . Any rea sonable doubt as to whe ther the w orker ’s injuries arose out of his e mploy ment must be construed in the worke r’s favor

. Whirlpool Corp. v. Nakhone inh, 69 S.W .3d 164, 168 (Tenn. 2002)

.
The wor kers’ compensat i o n statute in Tennesse e per mits recover

y for injury

by acc ident

“ ari sin g ou t of

a nd in t he c ours e of e mpl oy

me nt. ” Te nn . Code Ann. § 50- 6- 10 3( a ) (2 00 5)

. I t is we lle sta bli sh e d th at an inj ur

y mus t bo th “ ari se ou t of

” a s w e ll a s b e “ in t

he c ours e ” of

e mpl oy me nt i n order to be compensa

ble under the worke rs’ c ompensation statute. Thornton v. RCA Serv. C o., 221 S. W

. 2 d 954, 955 (Tenn. 1949) . “[T] he phra se ‘in the c ourse of ’ re fer s to tim e, plac e and circ umstances, an d ‘a ri sing out of’ ref ers to ca use or or igin.” Br imhall v. Home I ns. Co., 694 S.W .2d 931, 932 (Tenn. 1985) . “‘[A]n inj u ry b y ac cident to an employ ee is ‘in the c ourse of ’ employ ment if it occurr ed while he was perf orming a duty

he wa s employ ed to do; and it is an injury ‘ar ising out of’ employ

ment if ca used by a hazar d incident to such employ ment.’” Tr avele rs I ns. Co. v. Goog e, 397 S.W .2d 368, 371 (Tenn. 1965) (quoting Shubert v. Steelman, 377 S.W.2d 940, 942 (Tenn. 1964) ). “An acc idental i njury arises out of one’s employ ment when there is appar ent to the rational mind, upon a c onsideration of a ll the circumstanc es, a c ausal c on n ec t i o n betwee n the conditions under which the work is re quired to be pe rfor med and the r esulting injur y

. ” Fi nk v. Caudle, 856 S.W.2d 952, 958 (Tenn. Workers’ Comp. Panel Jul y 7, 1993). “[G]enera lly , an injury arises out of a

nd in the course of employ ment if it has a rational c ausal c onnection to the wor k and

occur s while the employ ee is e ng ag ed in the duties of his e mploy ment

. . . .” Hall v. Auburntown I ndus., I nc., 684 S.W.2d 614, 617 (Tenn. 1985).

[T] he mer e pre sence of an e mploy ee at the place of injury beca use of his employ

ment wi ll n ot a lon e re su lt i n th e inj ur y be ingc on sid e re d a s a

ri sin g ou t of

the e mpl oy

me nt. I f the injury

. . . resulted f

rom an ex posure which is no more or differ ent from that of5

any other membe r of the public simi l ar l y situated in place and time, it is not compensa ble.

Sudduth v. W illiams, 517 S .W.2d 520, 523 (Tenn. 1974).

III . A nal ys is o f the Cl aim

Be cause the medica l proof in this c ase established that the cause of the Plaintiff’s pain was known to be fr om his prior R SD condition (as opposed to being of an unknow n etiology ), the trial court de termined that the injury was not idiopathic. As indicate d, the Panel disag ree d but ruled that even if the left hip and back p ro b l ems wer e idiopathic in nature , “the f act that [the Plaintiff] . . . walk[ed] som e six hundred y ards da ily to and from his wo rk s t at i on” qualifie d as an e mploy ment ha zar d “ wh ic h c a

us e d o r e xac e rb a te d” the inj ur ie s.

There are a number

of ca ses helpful to the determination of whether the injury

qualifies as idiopathic and, if so, whe ther the injury is compensable. Fo r ex ample, in Gre eson v. Am. L ava Corp., 392 S.W .2d 931 (Tenn. 1965) , an employ ee f ell at work a s a re sult of a pr e- ex isting spinal

c or d c on dit ion

. Al tho ug h the c on dit ion c a us e d a tr op hy
, numbn e ss, and tin g lin g in h is r ig ht l e g , th is Court de nie d w or

ke rs ’ c omp e ns a tio n b e ne fi ts. I d. a t 93 5. B e c a us e “ the [em

plo y e e ] fe ll b e c a

us e his leg fa i l ed to re spond[,] [and] the evidenc e fully supports the finding that the petitioner’s f all was

caus e d b y a n id io p a th ic a tt a c k
, ” th e r e w a s n o e n ti tl e me n t to r e c o v e r y

. I d

. a t 9 3 3 . The Court de sc ri be d “T e nn e sse e [as ] a mon g tho se state s deny ingre c ov e ry fo r t he e ff e c ts o f a n id iop a thi c fa ll to the level g round or ba

re f loor.” I d. at 934.

I n McClain v. Allied-B endix, I nc., 1994 WL 901486 (Tenn. Workers’ Comp. P anel Apr . 5, 19 94 ), the e mploy ee’s kn e e “ we nt o ut” a t w or k w hil e he wa s w a lki nga ft e r t he c omp le tio n o f h is daily duties. He ha d injured his knee some six y ear s earlier and his phy sician testified that the employ ee’ s “pre exis ting c ondition predisposed him to

. . . the t orn m eniscus inj ury .” I d. at *2. The Special W orker s’ C ompensation Appea ls Panel held that the employ ee’ s fall at wor k was “ cause d by an idiopathic condition of the [employ ee]; there w as no condition of the employ ment that prese nted a pe culiar or

additional hazard to the [employ ee]; and this wa s not a totally unexplained fall.” I d

. at *3. Simi larly , in Rey nolds v. W al-Mar

t Stores, I nc., 1996 WL677109, at *1 (Te nn. Workers’ Comp. Panel Nov. 25, 1996), the employ ee fe l l an d wa s injured while wa lking out of a dressing room. Prior to the fall, she ha d suffered f rom L eric he’s sy

ndrome, whic h cause d pain or numbness in the leg s. Be cause there was no work hazard, the Panel denied benef its b ec au s e “ the

rec ord pre ponderates in favor of the findingthat t h e [ em p l o y ee’ s] fall was occa sioned by a pre

exis ting idiopathic c ondition.” I d. at *4.

I n G re e so n an d its pro g e ny , the e mpl oy e e s h a d p re -e xistin g c on dit ion s w hic h a ff e c te d th e ir

a b i l i t y t o w a l k

. N o w o r

k h a z ar d w a s p r e s e n t w h e n t h e e mp l o ye e s e x p e r i e n c e d t h e s u b s e qu e n ti n

j u r y. Un de r the se c ir c ums tanc e s, thi s Cour t and its Pane ls have c on sis te ntl y ru le d tha t the ne w inju ry is not compensable . That is, the injuries would have occur red w hether

the employ ee ha

ppened to be at work or

at another

location.6

I n w or ke rs ’ c omp e ns a tio n c a se s, “ be ne fi ts h a ve g e ne ra lly no t be e n all ow e d whe re the c a us e of [an inj ur y ] ha s bee n fou

nd to be du e to som e dis e a se d or oth e r idi op a thi c c on dit ion pe rs on a l to the employ ee, absent some ‘spec ial hazard’ of the employ ment.” Sudduth, 517 S .W.2d at 523 (citing Arthur L arson, Workmen’s Compensation L aw § 10.3 1 (1 972)). Rec ently , this Court m ade the fo llo wi ngob se rv a tio ns :
[A] n injury due to an idi opathic condition is compensa ble i f an employ

ment hazard

c a us e s o r e xac e rb a te s th e inj ur ie s. Th e a c c ide nt a ri se s o ut o f em

plo y me nt if the re is

a ca usal conne ction betwee n the conditions under which the work is per formed a nd the re s u l t i n g i njury . This causa l link mus t be betwe en the e mploy ment and the injury , rathe r than be tween the employ ment and the idiopathic e pisode.

Phill ips v. A & H Constr. Co., 134 S .W.3d 145, 148 (Tenn. 2004). In order for a rec overy , under the se c ir c ums tanc e s, the re mus t be “ so me ha zar d [i. e ., dr ivi ng ] inc ide nt t o h is o r h e r e mpl oy me nt. I f dr iv ing a

ve hic le is p art

of an e mpl oy e e ’s job , th e n it is c e rt a inl y

a ha zar d in c ide nt t o employ ment.” I d. at 152. I n Phill ips, this Court he ld that “ [t ]o prove that his injuries arose out of his employ

ment, [a claimant] mus t pr ove that [a spe cial hazard incident to e mploy ment] ca used or

exacer bated his injuries, not that any condition of work c aused his idiopathic loss of consciousness.” I d.

Tenne ssee c ourts have c onsistently held that an empl oy ee ma y not rec over f

or an injury

occur ring while walkingunless there is an employ ment hazard, such a s a puddle of water or a step, in addition to the injured employ ee’ s am b u l at i o n . See Willi ams v. Metro. Gov’ t of Nashville & Da vid so n Co un ty , 2 00 4 WL

37 02 96
, a t *4 (T e nn . Wo rk e rs ’ C omp . Pa ne l Ma rc h 1 , 2 00 4) ; Mc Mil lin v. McKe nzie Spec ial Sch. Dist., 2001 WL 34090141, at *3 (Tenn. Workers’ Comp. Panel Jul y 12, 2 0 0 1 )

. T yp i c a l l y, ane mp l o ye e m u s tw a l k a s h o r t d i s t an c e t o an d

f r o m h i s w o r

k s t a t i o ne v e r

y d a y. The trial c ourt in the instant case found as a matter of f

act that the Plaintiff’ s injury could have

oc c ur re d any wh e re ou tsi de of wo rk

. Dr

. B ro wn a c kn ow le dg e d th a t th e inj ur y wo uld have e ve ntu a lly

oc c ur re d, wh e the r t

he Pla int if

f w a s w a lki nga t wo rk or no t. Ev e n the Pla int if f c on c e de d th a t “ [t]his is the second time in three y ear s this ha s happene d to me .” Finally
, there was simply no condition or hazard at the place of employ ment. The recor d establishes t hat the Plaintiff was w alking on an ob sta c le -f re e c on c re te surf

a c e wh e n he fe lt an inc re a se in pa in i n h is b a c k a nd le ft hip are a . So me hazard, such a s the pre s ence of a liquid, hole, obstacle, or a vehicle, must exist before a n awa rd, under c ircumstance s like these, is permissible. I n this c ase, the testimony was that the floor lea ding to t he wo rk statio n w a s sm oo th a

nd fl a t, w ith ou t any

ste ps , w ithno ro ug h o r u ne ve n s ur fa c e s.

IV . P r iorSe tt le m e nt

Th e De fe nd ant a lso su

bmi ts that th e c la im i s b arr e d b e c a us e the Pla int if

f e nte re d in to a

“ fu ll and fina l [ lump sum] settlement of all cla ims of whateve r kind or natur e” a s a result of his 1999 inj ur y . A s to that is su e , th e Spe c ia l Wor ke rs ’ C omp e ns a tio n App e a ls Pa ne l f ound a s f oll ow s:
[T]he inj ur ie s Pla int if

f c omp la ins of he re ha d not manif e ste d the mse lve s at the tim e7

of the e arlier

settlement. Settlements of [workers’] co m p en sation claims are construed u n der the same rule s which apply to compromise and se ttlement ag ree ments g ener ally . L ay ne v. Tenn. Cons ol. Coal Co., 337 S.W .2d 237, 238 (Tenn. 1960) [(reve rsing the dismissal of a claim for sil icosis wher e a pr evious settlement made no mention of that condition, a nd wher e the condition w as alleg edly unknown at the time of the se ttlement)]. I n this c ontext , we note that relea se ag ree ments are construed under ordinary contra ct rules with the prim ary g oal being to effec tuate the parties’ inten tion. Thus, relea se ag ree ments ordinarily apply only to claims which

are within the parties’ c ontemplation, a nd exis ting at the time of the execution of the ag ree ment. They

do not bar c laims which arise afte r the re lease . We also note that an injury limit ed to a sc heduled membe r wil l only entitle a claimant to an award f or that particula

r member , and not for the body as a whole. Thus, Mr. Wilhelm’s prior

awa rd for disability to his right lower extremity could not have c ompensated him for injuries t o h i s b ack and left hip. F or these r easons, we hold that the previous settlement does not bar

Mr. Wilhelm’s claims here.

The Plaintiff ar g ues that at the time h e co mpromised his init ial claim, his injury or
acc ompanying disabilit y neither ex tended to another schedule d member nor to his body as a w hole. I t is his po sit ion that no matt e r wh a t he kne w or did no t know a t the tim e of the se ttl e me nt, he c ou ld not have rec eived compensation at t hat t ime for any problem that later

develope d in his left hip. He contends that public policy supports his right to seek compensation for an injury to his back and the h i p o p p o s i t e h i s i n i t i a l i n

j u r y.

As in d i ca t ed
, the trial cour t concluded that the Plaintiff’s 2004 injury was the dire ct and

natur a l r e su lt o f t

he 19 99 inj ur

y

. Dr

. Sto ne ha d te sti fi e d tha t the lim p f ro m th e RSD c on dit ion

wo uld likely cause problems to the left hip and back. I n our view, the subsequent injury was the natura l and pr ob a ble c on se qu e nc e of

the fi rs t.

Dr. L undy independe ntly

confirme d that the 2004 hip and back injuries wer e the r esult of the Pla int if f’ s p ri or inj ur y

. He te sti fi e d tha t the tr oc ha nte ri c burs iti s wa s mor e lik e ly tha n n ot r e la te d to the abnor mal g ait, which wa s in consequenc e of “his injury to the [prior] rig ht foot and ankle are a.” I t w a s D r. B ro wn ’s op ini on that the pr ior RSD inj ur y of his ri g ht le g c a

us e d s uc h a

n a bn or ma l g a it, that alone c o u l d h ave c aused his cur rent injuries. His impairment rating wa s based upon the abnorma l ga it. Even the Plaintiff c oncede d that “eve ry medical doctor has taken the . . . position that [t he Plaintiff’s ] co n dition is cause d by the way he wa lks and that is directly attributable to the occupational injury

he suff ere d back in 1999.”

Tenne ssee Code A nnotated sec tion 50-6-231 provides “ [a] ll amounts pa id by the employ er and re ceive d by

the employ ee or

the employ ee’ s depende nts, by lump sum pay

ments, shall be final.” Our de ci sion in Underwood v. Z urich Ins. Co., 854 S.W .2d 94, 97 (Tenn. 1993) controls. I n that

c a se , a n e mpl oy e e atte mpt e d to re -o pe n his wo rk e rs ’ co mpe ns a tio n a wa rd be c a us e of an in c re a se in dis a bil ity . T his Court

ru le d th a t8

“by enter ing into lump-sum settlements both part i es run a r isk of injury . The employ ee r

uns the risk that his disability may incre ase in the future a nd the employ er
ru ns the ri sk

tha t th e dis a bil ity of the e mpl oy e e may

de c re a se in t

he futur e , b ut b oth parties a re bound and fore closed by the entry of a valid decr ee a pproving a lump-sum settlement.”

I d. (quoting Corby

v. Matthews, 541 S.W.2d 789, 793 (Tenn. 1976)).

The Plaintiff, there fore
, is also prec luded by the prior se ttlement from re cover ing a dditional benef its. Bec ause the trial court f ound and we ag ree that the injury in this m atter w as “the natural and proba ble re sult of his prior compensable on the job injury to his oppos i t e ex t re m ity in 1999 which occ urre d while workingfor this very employ er,” his claim must fail on t his additional gr ound. When the Plaintiff entere d into his prior settlement, the altere d g ait had been a n ong oing c ondition sin c e the 19 99 wor k inj ur y . A t th e tim e of

the se ttl e me nt, the pa

rt ie s h a d e ve ry

re a so n to contemplate a

further prog ression of sy

mptoms. The medical testimony is uncontradicte d. That the settlement provides for

open lifetime medic al ca

re f or conditions causa lly

related to the 1999 injury is a n in dic a tio n th a t f

utu re c omp lic a tio ns mig ht h a ve be e n c on te mpl a te d. Thus , th e Pla int if f i s fo re c los e d f

ro m r e c e ivi nga dd iti on a l vo c a tio na l di sa bil ity be ne fi ts f

or the 20 04 c la im.

V. Conclusion

The hip and ba ck injuries at issue a re not compensa

ble because they did not arise out of the Plaintiff’ s e mp lo y

me n t. A n

in ju r y w h ic h o c c u r s a s ane mp lo y e e w a lk s o na le v e l, o b s ta c le

- fre e,
concr ete surf

ace is not compensable unless a hazar d contributes to the injury . Moreove r, the lumpsum settlement for the 1999 wor k-re lated injury

bars r ecove ry

for this claim pursua

nt to Tennessee Code Annotated s ec t i on 50-6-231. That is, the Pl aintiff’s c omplications were the “natural and probable result” of

the initial impairment.

Th e jud g me nt o f t

he tr ia l c ourt

is re ve rs e d an d th e c a

us e is d ism iss e d. Cos ts a

re a sse sse d to the Plaintiff, Michae l Wi lhelm, for which e x ecution may issue, if nec essar

y

.

___________________________________ GA RY R. WA DE , JUST I CE