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
2
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).
7
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.
11
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.
12