McIlvain v. Russell Stover Candies, Inc.

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.

-2-
 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

-3-
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

-4-
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.

-5-
 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

-6-
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).

-7-
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

-8-
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

-9-
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.

-10-