Seals v. England/Corsair Upholstery Manufacturing Co.

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE
FILED
January 11, 1999
LINDA S. SEALS, ) FOR PUBLICATION
Cecil W. Crowson
)
Plaintiff/Appellee, ) Appellate Court Clerk
) FILED: JANUARY 11, 1999
v. )
)
ENGLAND/CORSAIR UPHOLSTERY ) CLAIBORNE COUNTY
MANUFACTURING COMPANY, INC., )
)
Defendant/Appellant, ) HON. BILLY JOE WHITE, JUDGE
)
DINA TOBIN, DIRECTOR OF )
THE DIVISION OF WORKERS’ ) NO. 03-S-01-9704-CH-00044
COMPENSATION, TENNESSEE )
DEPARTMENT OF LABOR, )
SECOND INJURY FUND, )
)
Defendant/Appellee. )

For Appellee Seals: For Appellant:

DAVID H. DUNAWAY J. STEVEN COLLINS
LaFollette, TN JOHN A. WILLIS
Knoxville, TN

For Appellee Second Injury Fund:

JOHN KNOX WALKUP
Attorney General and Reporter

SANDRA E. KEITH
Assistant Attorney General
Nashville, TN

O P I N I O N

JUDGMENT OF TRIAL COURT AFFIRMED
AS MODIFIED AND REMANDED BIRCH, J.
 In this workers’ compensation action, the employee, Linda

S. Seals, filed two separate claims: one for a March 1993 back

injury and a second for a July 1993 hand injury and chronic

depression. Although not formally consolidated by the trial court,

these claims were tried together. Regarding the first claim, the

trial court awarded the employee benefits for a 25 percent

permanent partial disability to the body as a whole as a result of

the back injury. Regarding the second claim, the trial court found

that the employee was permanently and totally disabled from the

combination of the back injury, the hand injury, and resulting

chronic depression. No distinct rating was provided for the hand

injury alone. Pursuant to Tenn. Code Ann. § 50-6-208(b) (Supp.

1997), the trial court apportioned the permanent total disability

award 75 percent to the employer, England/Corsair Upholstery

Manufacturing Company, Inc., and 25 percent to the Second Injury

Fund.

This Court consolidated the employee’s two claims for

review. The Special Workers’ Compensation Appeals Panel, upon

reference for findings of fact and conclusions of law pursuant to

Tenn. Code Ann. § 50-6-225(e) (Supp. 1997), found that the evidence

preponderated against the trial court’s findings of permanent

psychiatric injury and permanent total disability. The panel found

instead that the employee sustained permanent partial disabilities

of 12.5 percent as a result of the back injury and 40 percent as a

result of the subsequent hand injury. In addition, the panel

disallowed certain discretionary costs awarded by the trial court.

We granted the employee’s motion for full-court review.

For the reasons stated below, we find that the evidence does not

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preponderate against the trial court’s findings. We remand the

case, however, for further proceedings on the apportionment of

liability between the employer and the Second Injury Fund in

accordance with this Court’s decision in Bomely v. Mid-America

Corp., 970 S.W.2d 929 (Tenn. 1998). We affirm, as modified, the

trial court’s order relating to the discretionary costs.

I

The employee is forty-eight years old and began working

for the employer in 1985. She sustained a work-related back injury

on March 7, 1993, but she was able to return to work on March 26,

1993, to a less strenuous position. She sustained another work-

related injury to her left hand and wrist on July 27, 1993, and she

underwent surgery for this injury on November 19, 1993. When she

returned to work on January 4, 1994, she was assigned to answer the

telephone, to file, and to perform minimal data entry tasks in the

office. Her status was changed to part-time on May 1, 1995, and

she subsequently resigned from her job on September 18, 1995. She

filed suit for workers’ compensation benefits for all of her

injuries. At trial, she testified that she resigned due to

constant pain in her back and left arm.

In the fall of 1995, the employee sought treatment for

depression at Cherokee Health Systems. She ended this treatment

after two or three visits, however, because she did not like her

doctor. The employee had not received any other treatment for

depression as of the time of the December 1996 trial.

3
 Two orthopedic surgeons testified regarding the extent of

the employee’s physical impairment. The treating physician, Harold

E. Cates, M.D., testified that the employee’s back injury resulted

in a 5 percent permanent impairment with a ten-pound lifting

restriction. He also testified that her hand/wrist injury resulted

in a 10 percent permanent impairment,1 yielding a combined rating

for both injuries of a 15 percent permanent impairment. The

evaluating physician, William E. Kennedy, M.D., testified that the

employee sustained a 4 percent permanent impairment to the body as

a whole as a result of her 1993 back injury. He did not rate the

impairment, if any, that the employee sustained from the hand/wrist

injury.

Regarding the employee’s depression, two psychiatrists

testified concerning the permanency of her impairment. The first,

Jerry B. Lemler, M.D., testified on behalf of the employee. Lemler

testified that during his evaluation of the employee on December 4,

1995, he concluded that she was suffering from major depression,

single episode with psychotic features, caused by her back and

hand/wrist injuries. Due to the untreated nature of her mental

illness, Lemler testified that the employee’s depression was

becoming chronic and would therefore not respond effectively to

anti-depressant medications. Furthermore, he testified that it was

unlikely that the employee would be able to engage in any

meaningful introspective psychotherapy due to her limited

intellectual ability. Finally, he testified that she would be

unable to concentrate sufficiently on an assigned work task for

eight hours each day. Thus, Lemler opined that the employee

1
Cates rated the employee’s hand/wrist injury as a 16 percent
permanent impairment to her arm which translates to a 10 percent
permanent impairment to the body as a whole.

4
suffered a 50 percent permanent impairment due to chronic

depression.

The second psychiatrist, Bruce Quinton Green, M.D.,

evaluated the employee’s mental impairment on behalf of the

employer. Green testified by deposition that psychological testing

and his personal examination of the employee resulted in his

conclusion that she is suffering from a major depressive episode

from which she “absolutely should recover” with appropriate medical

and rehabilitative treatment.2 Green elaborated that there is a

very high statistical likelihood that the employee’s depression is

not permanent.

Finally, three experts testified in regard to the

employee’s vocational capacity. Kelly Lenz, a physical therapist,

testified in reference to a “functional capacity evaluation” report

she prepared on the employee. Lenz’s report states that her

findings, when coupled with the lifting restrictions imposed by

Cates, meant that the employee would be most suitable for sedentary

work, defined as occasional lifting of ten pounds or less, no

frequent lifting, and no significant walking or carrying.

Norman Hankins, Ed.D., also testified as a vocational

expert. Hankins determined that the employee’s reading, spelling,

and arithmetic skills are at a grade-school level and that her IQ

is in the “borderline” range. Thus, he opined that even without

2
Green’s testimony supports Lemler’s conclusion that the
employee’s depression resulted in large part from her work-related
physical injuries.

5
the depression, the employee is 100 percent vocationally disabled

based on her physical and educational limitations.3

The last vocational expert, Ed Smith, testified on behalf

of the employer. Smith determined that the employee has

transferable skills in the areas of customer service, clerical,

telephonic, cashier, and reception. While he opined that the

employee is not totally disabled, Smith agreed with Lenz that the

employee is restricted to sedentary employment.

The trial court concluded that the employee was

permanently and totally disabled as a result of her physical and

mental injuries. The back injury and resulting depression were

rated as a 25 percent permanent partial disability to the body as

a whole,4 and the employer was ordered to pay benefits on this

basis. No distinct rating was given, however, to the hand/wrist

injury and consequential worsening of the employee’s depression

which resulted in her total disability. The trial court awarded

permanent total disability benefits to be paid until the employee

reaches age sixty-five.5 As noted previously, the trial court

3
Hankins mistakenly believed that Cates had placed a two-pound
lifting restriction on both of the employee’s arms, when in fact,
the orthopedist gave a two-pound restriction to the left arm and a
ten-pound restriction to the right arm. When asked how his
assessment would be altered by the ten-pound restriction, Hankins
admitted that there would be “a few” sedentary jobs that the
employee could perform.
4
The trial court based this disability rating upon a finding
that the employee had a 5 percent medical impairment due to the
back injury and a 5 percent medical impairment due to the
depression. Using the 2.5 statutory multiplier, the trial court
found a 25 percent permanent partial disability.
5
In its brief, the employer argued that the trial court erred
in awarding more than the statutory maximum of 400 weeks of
benefits. We recently decided this issue in Bomely wherein we held
that benefits for permanent total disability are not subject to the
400 week cap. Bomely, 970 S.W.2d at 932. Thus, the trial court
did not err.

6
apportioned the permanent total disability benefits 75 percent to

the employer and 25 percent to the Second Injury Fund. The trial

court also granted the employee’s motion for discretionary costs.

II

In Collins v. Howmet Corp., 970 S.W.2d 941, 943 (Tenn.

1998), we summarized the standard of review and other legal

principles that apply to the pending case:

In workers' compensation cases,
the standard of review in this Court
on issues of fact is 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); Spencer v. Towson
Moving and Storage Inc., 922 S.W.2d
508, 509 (Tenn. 1996). 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.
Humphrey v. David Witherspoon, Inc.,
734 S.W.2d 315, 315 (Tenn. 1987).

In reviewing the evidence, we are mindful that the

permanency of a work-related injury must first be established by

competent medical evidence. Harness v. CNA Ins. Co., 814 S.W.2d

733, 734 (Tenn. 1991). Once permanency is established, the trial

court may evaluate the factual question of the extent of vocational

disability. See Collins v. Howmet Corp., 970 S.W.2d at 943. In

determining vocational disability, the trial court may consider a

myriad of factors, including such factor as the employee’s

education. See Tenn. Code Ann. § 50-6-241(a)(1) (Supp. 1997)

(listing the factors to be considered).

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 In this case, the trial court heard the testimony

discussed above as well as the testimony of the employee and that

of a representative of the employer. From our independent, de novo

review of this evidence, we recognize that the trial court faced a

close question as to the extent and permanency of the employee’s

disabilities. However, in light of the presumption of correctness

given to the trial court’s findings and the deference due on issues

of credibility and weight to be given to oral testimony, we

conclude that the evidence does not preponderate against the

findings of the trial court. We thus affirm the findings regarding

the extent of the employee’s injuries and the permanent total

disabled condition that now exists due to her depression.

III

The employer first argues that the trial court abused its

discretion by not granting the employer’s motion to consolidate the

employee’s two workers’ compensation claims. Essentially, the

employer maintains that if the claims had been consolidated, the

employee would only have been entitled to one award of benefits for

permanent total disability; thus, no separate award of benefits for

the March 1993 back injury would have been appropriate.

We cannot agree. Although the employee was ultimately

permanently and totally disabled as a result of constant pain and

chronic depression from the combination of her injuries, she did in

fact suffer two distinct injuries occurring more than four months

apart. The employer knew that she had suffered the March 1993 back

injury when the employer permitted her to return to a less

strenuous job later that same month. Under these circumstances,

8
the employee is entitled to separate disability awards for both of

her injuries.

Furthermore, the employer received the benefits of

consolidation in the case under submission. Trial courts are

encouraged to consolidate actions involving a common question of

law or fact in order to avoid unnecessary expense and duplication

of effort. See Tenn. R. Civ. P. 42.01 & advisory commission

comments. In this case, although the trial court did not formally

consolidate the two workers’ compensation claims, it did permit

these claims to be tried in one proceeding. Thus, the trial court

did not abuse its discretion in failing to consolidate the two

cases.

IV

Because the employee suffered multiple injuries and is

now permanently and totally disabled as a result of chronic

depression, it was necessary for the trial court to apportion the

award for permanent total disability between the employer and the

Second Injury Fund pursuant to Tenn. Code Ann. § 50-6-208. We

recently addressed apportionment in Bomely. Although our decision

in Bomely was released after the trial court’s and the panel’s

respective decisions in this case, the apportionment in this case

must conform to Bomely because this case was pending at the time

Bomely was decided.

As we stated in Bomely, in order to decide whether a

given case is covered by Tenn. Code Ann. § 50-6-208(a)6 or § 50-6-

6
Subsection (a)(1) provides: “If an employee has previously
sustained a permanent physical disability from any cause or origin

9
208(b),7 “it is important for trial courts to make an explicit

finding of fact regarding the extent of vocational disability

attributable to the subsequent or last injury, without

consideration of any prior injuries.” Bomely, 970 S.W.2d at 934

(emphasis added). The trial court in this case may not have been

aware of the importance of making an explicit finding as to the

extent of vocational disability attributable solely to the

employee’s last injury (the hand/wrist injury and resulting

depression). Because there is no such explicit finding, and

because the parties have not had an opportunity to brief this

issue, we decline to address the apportionment of liability between

the employer and the Second Injury Fund. Instead, we remand this

case to the trial court for further proceedings consistent with

Bomely and its companion case, Love v. American Olean Tile Co., 970

S.W.2d 440 (Tenn. 1998).

V

and becomes permanently and totally disabled through a subsequent
injury, such employee shall be entitled to compensation from such
employee's employer or the employer's insurance company only for
the disability that would have resulted from the subsequent injury,
and such previous injury shall not be considered in estimating the
compensation to which such employee may be entitled under this
chapter from the employer or the employer's insurance company;
provided, that in addition to such compensation for a subsequent
injury, and after completion of the payments therefor, then such
employee shall be paid the remainder of the compensation that would
be due for the permanent total disability out of a special fund to
be known as the ‘second injury fund’ therein created.”
7
Subsection (b)(1) provides, in pertinent part: “(A) In
cases where the injured employee has received or will receive a
workers' compensation award or awards for permanent disability to
the body as a whole, and the combination of such awards equals or
exceeds one hundred percent (100%) permanent disability to the body
as a whole, the employee shall not be entitled to receive from the
employer or its insurance carrier any compensation for permanent
disability to the body as a whole that would be in excess of one
hundred percent (100%) permanent disability to the body as a whole,
after combining awards. (B) Benefits which may be due the employee
for permanent disability to the body as a whole in excess of one
hundred percent (100%) permanent disability to the body as a whole,
after combining awards, shall be paid by the second injury fund.”

10
 The employer asserts that the trial court erred in

awarding discretionary costs for Lemler’s deposition and for Lenz’s

testimony at trial. The award of discretionary costs is governed

by Tenn. R. Civ. P. 54.04(2). This rule authorizes the trial court

to award costs for reasonable and necessary court reporter expenses

and expert witness fees for depositions or trials. The award of

such costs is a discretionary matter with the trial court. Lock v.

National Union Fire Ins. Co., 809 S.W.2d 483, 490 (Tenn. 1991).

In this case, Lemler gave two depositions: a discovery

deposition taken by the employer’s attorney and a “deposition for

proof” taken by the employee’s attorney. The employer argues that

it should not be required to pay for the “deposition for proof”

because Lemler testified at trial.

Under the particular facts of this case, we agree with

the employer. The employee’s decision to have Lemler testify in

person at trial made the “deposition for proof” unnecessary. Thus,

the trial court abused its discretion by taxing the employer with

the costs attributable to that deposition.

The employer also argues that it should not be liable for

Lenz’s expert witness fee because the employer offered to stipulate

to the authenticity of Lenz’s report. However, the employer’s

offer to stipulate did not come until the day of trial. By that

time, Lenz was already present and ready to testify, and she was

precluded from being elsewhere. We thus find that the trial court

did not abuse its discretion in awarding Lenz’s expert witness fee

as a discretionary cost under Tenn. R. Civ. P. 54.04.

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 VI

We affirm the trial court’s judgment as to the existence,

compensability, and extent of the employee’s back, hand/wrist, and

psychological injuries with resulting permanent total disability.

We affirm, also, as modified, the trial court’s award of

discretionary costs. However, we remand this case to the trial

court for further proceedings to clarify the apportionment of

liability between the employer and the Second Injury Fund in light

of Bomely and Love.

The costs are taxed to the defendant-employer for which

execution may issue if necessary.

______________________________
ADOLPHO A. BIRCH, JR., Justice

CONCUR:
Anderson, C.J.
Drowota, Barker, JJ.

CONCURRING SEPARATELY:
Holder, J.

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