IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE FILED
July 19, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
FOR PUBLICATION
Filed: July 19, 1999
HELEN MCILVAIN, )
)
Appellee, )
) PUTNAM CHANCERY
)
)
Vs. ) HON. VERNON NEAL,
) CHANCELLOR
)
)
RUSSELL STOVER CANDIES, INC. ) NO. 01-S-01-9709-CH-00208
and ITT HARTFORD, )
)
Appellants. )
For the Appellant: For the Appellee:
William E. Halfacre, III Donald G. Dickerson
MADEWELL, JARED & HALFACRE Cookeville, Tennessee
Cookeville, Tennessee
OPINION
WORKERS’ COMPENSATION SPECIAL
APPEALS PANEL AFFIRMED, AS MODIFIED. ANDERSON, C.J
We granted the motion to review this workers’ compensation case to determine
two issues: 1) whether the evidence preponderates against the trial court’s award of 40
percent permanent partial disability to each arm; and, 2) whether the age-based
classification contained in Tenn. Code Ann. § 50-6-207(4)(A)(i) (1991 & Supp. 1998)
applies to injured workers over age 60 who suffer injuries to scheduled members.
The Putnam County Chancery Court awarded benefits based on 400 weeks
pursuant to Tenn. Code Ann. § 50-6-207(3)(A)(ii)(w) (1991 & Supp. 1998), finding that
the Plaintiff’s carpal tunnel syndrome arose out of and in the course of her employment
and resulted in a 40 percent permanent partial disability to each arm for a total award of
160 weeks. The trial court further held that the age-based classification set forth in
Tenn. Code Ann. § 50-6-207(4)(A)(i) pertains only to injured workers over age 60 who
suffer disability to the body as a whole. The Workers’ Compensation Special Appeals
Panel affirmed the trial court’s award but held that the age-based classification placed a
260 week cap on an award to a worker over age 60 who suffers injury to a scheduled
member. After our review of the record and applicable authorities, we affirm the
Panel’s judgment as modified.
BACKGROUND
According to the record, Plaintiff Helen McIlvain (“McIlvain”) has completed two
years of high school, has obtained a GED, and has completed some vocational training
courses. McIlvain’s work history reflects that she has worked approximately 45 years in
various jobs requiring repetitive use of her hands such as lifting, driving, and writing.
McIlvain began working for Defendant Russell Stover Candies, Inc. (“Russell
Stover”) on May 2, 1994. Her work involved packing candy or working in the “nut
room,” where she was required to pick through the nuts to remove any foreign objects.
Both these jobs required McIlvain to make repetitive use of her hands and wrists.
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The record reflects that McIlvain has no family history for carpal tunnel
syndrome, and that she had never experienced any problems with her hands before
working for Russell Stover. McIlvain testified that her symptoms first arose around July
of 1996 while she was working for Russell Stover. At that time, she began to
experience pain, tingling, and numbness in her wrists which has disrupted her sleep,
and has interfered with her ability to work, drive a car, and perform chores such as
vacuuming, washing dishes, dusting, sewing or tightening the caps on jars. As a result,
McIlvain often requires her husband’s assistance. At the onset of these symptoms,
McIlvain was 61 years old.
McIlvain’s husband testified that he has taken over the chores at home and the
antique store which he owns and operates with his wife, that he has observed his wife’s
pain and difficulty when driving a car, and that he now mends his own clothes, has to
help his wife with buttons and snaps on her clothing, and often has to sleep in a
separate room since McIlvain’s restlessness disturbs his sleep. He further testified that
his wife never had these problems prior to her work at Russell Stover, and that he
observes her condition as continually getting worse.
All medical proof in the record was entered through deposition and consists of
the opinions from four different physicians. Russell Stover first sent McIlvain to Dr.
Kenneth Colburn, a family practitioner. After one visit with McIlvain, Dr. Colburn
diagnosed her as having a classic case of bilateral carpal tunnel syndrome and
temporarily restricted McIlvain from returning to work.
After Dr. Colburn restricted McIlvain from work, Russell Stover sent McIlvain to
see Dr. John Clough. According to Dr. Clough’s office notes, Dr. Clough diagnosed
McIlvain as suffering from tenosynovitis and possibly early carpal tunnel syndrome.
Though Dr. Clough restricted McIlvain from repetitive motion, he felt that she could
begin performing light duty work for Russell Stover. Consequently, McIlvain returned to
work, but she requested a second opinion regarding whether she had carpal tunnel
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syndrome. Russell Stover referred her to Dr. Toney Hudson, a practitioner of
occupational medicine and preventative health.
Dr. Hudson saw McIlvain in his office a total of eight times. Dr. Hudson testified
that he ultimately diagnosed McIlvain with “bilateral carpal tunnel syndrome that had
improved.” According to Dr. Hudson, the cause of the carpal tunnel syndrome was
“multi-factorial,” stemming from McIlvain’s present work, her past work, and her age.
Though Dr. Hudson opined that McIlvain would retain a zero percent impairment, he
restricted her from working at Russell Stover, explaining that she could still perform in
the labor market if she avoids highly repetitive work.
The last deposition entered as medical proof was that of Dr. Richard Fishbein,
an orthopaedic surgeon. Dr. Fishbein opined that McIlvain had a 5 percent impairment
to both arms caused by carpal tunnel disease which was more probably than not
caused by working at Russell Stover. Dr. Fishbein placed restrictions on McIlvain’s
activities, especially recommending that McIlvain avoid repetitive hand and wrist
movements.
The only witness other than McIlvain and her husband to testify at trial was Bill
Patterson, a private investigator Russell Stover hired to covertly videotape McIlvain.
Patterson discovered that McIlvain worked part-time in an antique store. He testified
that he went to the antique store and secretly videotaped McIlvain flipping through the
yellow pages, dialing a push button phone, carrying items from her minivan to the store,
and carrying a sign to put outside the store. Patterson testified McIlvain exhibited no
difficulty in any of these activities.
McIlvain conceded that she and her husband had owned and operated the
antique store for about five years and that she had not mentioned the store to either Dr.
Hudson or Dr. Fishbein; however, she further testified that her work at the antique store
required no repetitive hand movements and that her husband performed any work
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which would otherwise cause discomfort to her hands and wrists. There was also
evidence that such work was not gainful employment.
Russell Stover argued before the trial court that the age-based classification
contained in Tenn. Code Ann. § 50-6-207(4)(A)(i) should apply to reduce McIlvain’s
award by offsetting Social Security retirement benefits she received. Over the
sustained objection of McIlvain’s counsel, Russell Stover entered into the record proof
that McIlvain has been receiving Social Security retirement insurance benefits.
After the presentation of all the proof, the trial judge found that McIlvain suffered
from bilateral carpal tunnel syndrome which arose out of and in the course of her
employment with Russell Stover. The trial judge noted that all of the medical
depositions supported this finding and stated that “there’s no evidence that she did any
repetitive manipulation with her hands in the antique shop that brought about this
condition.” The trial judge considered Dr. Fishbein’s deposition testimony to be more
persuasive than Dr. Hudson’s testimony based on the fact that “Dr. Hudson, even
though he didn’t feel like that there was any medical disability, . . . did feel like . . . she
should change careers.”
The trial court rejected Russell Stover’s argument that the age-based
classification contained in Tenn. Code Ann. § 50-6-207(4)(A)(i) should apply to reduce
McIlvain’s award by offsetting Social Security retirement benefits she received,
reasoning that our holding in Vogel v. W ells Fargo Guard Serv., 937 S.W.2d 856 (Tenn.
1996), only extended the age-based classification to permanent partial disability awards
to the body as a whole but not to scheduled members. Accordingly, the trial court held
that § -207(4)(A)(i) was inapplicable to the present case and awarded 40 percent
vocational disability to each arm, based on 400 weeks, entitling McIlvain to 160 weeks
of benefits at the rate of $196.69 per week. The applicable workers’ compensation rate
resulted in McIlvain receiving a judgment of $31,470.40 for permanent partial disability
benefits.
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The Workers’ Compensation Special Appeals Panel held that the evidence did
not preponderate against the trial court’s finding of disability. Rejecting Russell Stover’s
argument that under Vogel, McIlvain’s recovery should be limited to 40 percent of 260
weeks, and noting that in this case, the award of 160 weeks did not exceed § -
207(4)(A)(i)’s cap of 260 weeks, the Panel held that “disability benefits are to be based
on the schedule contained in Tenn. Code Ann. section 50-6-207(3)(A)(ii), but are
subject to the maximum contained in Tenn. Code Ann. section 50-6-207(4)(A)(i).”
We granted Russell Stover’s motion for review.
ANALYSIS
Percentage of Disability
We begin our analysis by noting the applicable standard by which to review
workers’ compensation cases. Issues of fact are reviewed de novo upon the record of
the trial court, accompanied by a presumption of the correctness of the findings, unless
the preponderance of the evidence is otherwise. Tenn. Code Ann. § 50-6-225(e)(2)
(1991 & Supp. 1998). When a trial court has seen and heard witnesses, especially
where issues of credibility and weight of oral testimony are involved, considerable
deference must be accorded to the trial court’s factual findings. E.g., Collins v. Howmet
Corp., 970 S.W.2d 941, 943 (Tenn. 1998). However, where the issues involve expert
medical testimony, and all the medical proof is contained in the record by deposition, as
it is in this case, then this Court may draw its own conclusions about the weight and
credibility of that testimony, since we are in the same position as the trial judge. E.g.,
Krick v. City of Lawrenceburg, 945 S.W.2d 709, 712 (Tenn. 1997).
The extent of vocational disability is a question of fact to be determined from all
the evidence, including lay and expert testimony. E.g., Henson v. City of
Lawrenceburg, 851 S.W.2d 809, 812 (Tenn. 1993). Factors to be considered in
determining the extent of vocational disability include the employee’s job skills and
training, education, age, extent of anatomical impairment, duration of impairment, local
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job opportunities, and the employee’s capacity to work at the kinds of employment
available to her in her disabled condition. E.g., Perkins v. Enterprise Truck Lines, Inc. ,
896 S.W.2d 123, 127 (Tenn. 1995). The employee’s own assessment of her physical
condition and resulting disability is competent testimony that should be considered as
well. Id.
With these principles in mind, we review the record to determine whether the
evidence preponderates against the trial court’s finding of 40 percent permanent partial
disability to each arm. The record reveals several factors which support the trial court’s
decision on vocational disability. Both McIlvain and her husband testified that she is no
longer able to do household chores, she has difficulty and pain when driving or writing,
and she has disrupted sleep. Mr. McIlvain testified that he has had to take over chores
at home and the antique store, and has to help his wife perform simple tasks like
buttoning and snapping clothing or tightening jar lids.
With respect to McIlvain’s job skills and training, the proof reflects that every
employment McIlvain has had which might allow her to obtain another similar job in
Tennessee has required McIlvain to make repetitive use of her hands and wrists.1 The
medical proof in the record, however, is unequivocal in restricting McIlvain from making
repetitive use of her hands and wrists. This restriction weighs heavily in support of the
trial court’s assessment of disability.
In insisting that the evidence preponderates against the trial court’s award of
disability, Russell Stover emphasizes: 1) Dr. Hudson’s finding of zero percent
impairment; 2) McIlvain’s work at her antique store; and, 3) McIlvain’s statement to Dr.
Colburn that she intended to retire. However, our review of the record and the detailed
findings of the trial judge reveals that the trial judge properly took all these factors into
consideration. We agree with the trial court that Dr. Hudson’s finding of zero percent
1
The only job in McIlvain’s work history which did not require her to write, drive, lift, or
make repetitive use of her hands was that of a manager for a bingo parlor business which, as noted by the
trial court, offers McIlvain little practical use in Tennessee since for-profit bingo is an illegal lottery. Tenn.
Cons t. art. XI, § 5; Secretary of State v. St. Augustine Church, 766 S.W .2d 499 ( Tenn . 1989).
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impairment seems inconsistent with his restricting her from work and is insufficient to
preponderate against other medical proof in the record.
As to the issue of McIlvain’s work at the antique store, Patterson’s testimony fails
to overcome the trial court’s finding that this work required no repetitive hand and wrist
movements. Further, the trial court clearly considered the factor of McIlvain’s age,
which, in our view, is relevant to whether McIlvain would soon retire. Accordingly, after
considering all the evidence in the record, the parties’ arguments, and applicable law,
we conclude that the evidence fails to preponderate against the trial court’s finding of
40 percent permanent partial disability to both arms arising out of and in the course of
McIlvain’s employment with Russell Stover.
Section 207
We now turn to the issue of whether the age-based classification contained in
Tenn. Code Ann. § 50-6-207(4)(A)(i) applies to reduce the award of an injured worker
over age 60 who has sustained a permanent partial disability to a scheduled member.
The relevant statutory provision states that:
compensation shall be paid during the period of such
permanent total disability until the employee reaches the
age of sixty-five (65); provided, that with respect to
disabilities resulting from injuries which occur after age sixty
(60), regardless of the age of the employee, permanent total
disability benefits are payable for a period of two hundred
sixty (260) weeks. Such compensation payments shall be
reduced by the amount of any old age insurance benefit
payments attributable to employer contributions which the
employee may receive under the Social Security Act, U.S.C.,
title 42, chapter 7, subchapter II, as amended.
Id. (emphasis added).
Relying on our opinion in Vogel, 937 S.W.2d 856, Russell Stover argues that
McIlvain’s Social Security retirement benefits should be offset against her disability
award because the age-based classification contained in Tenn. Code Ann. § 50-6-
207(4)(A)(i) applies not only to injured workers over age 60 who suffer injury to the body
as a whole but also to such workers who suffer injury to scheduled members and that
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McIlvain’s award should have been based on 40 percent of 260 weeks rather than 40
percent of 400 weeks. McIlvain argues, on the other hand, that Tenn. Code Ann. § 50-
6-207(4)(A)(i), as interpreted by Vogel, is meant to apply only to injured workers over
age 60 who suffer an injury to the body as a whole, whether total or partial, and that in
any event, McIlvain’s award would be unaffected by any interpretation of the statute
which would cap her award at 260 weeks since her award was for 160 weeks.
In Vogel, the 73-year-old plaintiff sustained injury resulting in a permanent total
disability, and the statute clearly applied. In reversing the trial court’s holding that the
age-based distinction was unconstitutional, we held that such distinction was rationally
related to the legitimate state interest of tying “workers’ compensation benefits for
workers who are permanently and totally disabled to the commencement of Social
Security benefits.” Id. at 860-61. However, reasoning that the disability-based
distinction was irrational because a permanently partially disabled worker was subject to
receive a greater award than a permanently totally disabled worker, we concluded that
“the 260 week cap set forth in Tennessee Code Annotated Section 50-6-207(4)(A)(i)
applies to all injured workers over sixty who are awarded benefits under the Workers’
Compensation statute for permanent partial or permanent total disability.” Id. at 862.
Our holding in Vogel remedied the otherwise irrational result of a permanently
totally disabled worker, such as the plaintiff in Vogel, from receiving a smaller award
than a similarly situated, yet permanently partially disabled worker. Both the facts of
Vogel and the explicit language of the relevant portion of the statute, however, were
limited to injuries to the body as a whole, i.e. “permanent total disability.” See Vogel
937 S.W.2d at 857; § -207(4)(A)(i). It is well-settled that “[w]hen the injury is to a
scheduled member, the disability award is exclusively controlled by the impairment
rating established by the General Assembly for that member.” E.g., Reagan v.
Tennessee Mun. League, 751 S.W.2d 842, 843 (Tenn. 1988) (emphasis added). We
can imagine a situation in which a worker over age 60 who sustains a permanent total
disability or a permanent partial disability to the body as a whole receives a smaller
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award than a worker over age 60 who receives a permanent partial disability to a
scheduled member, and perhaps Russell Stover’s argument that the award should be
based on a percentage of 260 weeks addresses this discrepancy. As we noted in
Vogel, however, “[i]t is the business of the legislature to pass new laws and modify
existing ones.” Id. at 862. Accordingly, in our view, Tenn. Code Ann. § 50-6-
207(4)(A)(i) applies to workers over age 60 who suffer injuries to the body as a whole,
whether permanent partial or permanent total, but not to such workers who suffer
scheduled member injuries.
CONCLUSION
After considering the record, the parties’ arguments, and applicable law, we
conclude that the evidence does not preponderate against the trial court’s award of 40
percent permanent partial disability to each arm. We further conclude that the age-
based classification contained in Tenn. Code Ann. § 50-6-207(4)(A)(i) does not apply to
a worker over age 60 who suffers injury to a scheduled member. Accordingly, we affirm
the judgment of the Workers’ Compensation Special Appeals Panel as modified and
remand to the trial court for further proceedings consistent with this opinion. Costs of
appeal are assessed against appellants for which execution shall issue if necessary.
______________________________
RILEY ANDERSON, CHIEF JUSTICE
CONCUR:
Drowota, Birch, Holder, Barker, JJ.
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McIlvain v. Russell Stover Candies, Inc.
Combined Opinion