IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE FILED
December 21, 1998
Cecil W. Crowson
SHARON WALKER, ) Appellate Court Clerk
) FILED: December 21, 1998
Plaintiff/Appellant )
) MAURY CIRCUIT
V. )
) HON. JIM T. HAMILTON,
SATURN CORPORATION, ) JUDGE
)
Defendant/Appellee ) No. 01S01-9703-CV-00048
)
)
For the Plaintiff/Appellant: For the Defendant/Appellee:
J. Anthony Arena Thomas H. Peebles, IV
Schulman, LeRoy & Bennett, P.C. Dana C. McLendon
Nashville, Tennessee Waller, Lansden, Dortch & Davis
Columbia, Tennessee
OPINION
REVERSED BARKER, J.
We granted the plaintiff’s motion for full court review of the Special Workers’
Compensation Appeals Panel’s findings of fact and conclusions of law to determine
whether the Panel erred in deciding: (1) that the evidence preponderates against the
trial court’s finding that plaintiff suffered a permanent partial disability to the right arm;
and (2) that the evidence preponderates against an eighty-five percent permanent
partial disability to the plaintiff’s left arm. For the reasons contained herein, we
conclude that the Panel erred in finding no permanent disability to the right arm and in
reducing the disability to her left arm to sixty percent. Accordingly, the decision of the
Panel is reversed and the trial court’s judgment is affirmed.
BACKGROUND
The plaintiff, Sharon Walker, was thirty-three years old at the time of trial and
had been employed by Saturn Corporation since it opened its Spring Hill plant in 1990.
She was employed as a member of a work team, and her tasks included installing
seat belts and seat ramps into new automobiles and inserting numerous screws into
car frames. Those activities required the repetitive use of power tools. On April 22,
1994, Walker reported to the Saturn Medical Department complaining of pain in her
left wrist and numbness in her left hand, thumb, and fingers. She was eventually
referred to Dr. Paul Parsons and Dr. Paul Thomas for treatment.1
Dr. Parsons diagnosed the plaintiff’s condition as tenosynovitis and followed a
conservative treatment regimen. That treatment proved unsuccessful and when the
plaintiff saw Dr. Thomas on June 13, 1994, she complained of persistent left thumb
pain. He found that she had “left thumb Dequervain’s stenosising tenosynovitis” and
recommended surgery to release the pressure from the tendons. Dr. Thomas
1
The record reflects that Walker initially received treatment from Dr. Parsons, but began seeing
Dr. Th oma s, who w as in the s ame practice g roup, in Ju ne of 19 94.
2
performed surgery on June 15, 1994, and following physical therapy, the plaintiff
returned to work on September 14, 1994, with restrictions on the use of her left hand.
On October 26, 1994, plaintiff complained to the Saturn Medical Department of
numbness and tingling in her right wrist. She returned to Dr. Thomas with complaints
of pain in her right thumb and stated that it worsened with her activities at Saturn. On
January 26, 1995, Dr. Thomas diagnosed the plaintiff with “right wrist Dequervain’s
stenosising tenosynovitis” and placed her on permanent restrictions against repetitive
thumb activities such as grasping or pinching. He hoped that the permanent
restrictions would avoid any further problems with the employee’s right arm.
Ms. Walker again visited Dr. Thomas on March 16, 1995, complaining of
numbness in the fourth and fifth fingers of her left hand. Dr. Thomas believed she had
a probable entrapment of the ulnar nerve in her left elbow, a diagnosis which was later
confirmed with nerve conduction studies. After conservative treatment failed, Dr.
Thomas again performed surgery, this time a transposition of the ulnar nerve of the
plaintiff’s left elbow.
Dr. Thomas testified by deposition that the tenosynovitis in plaintiff’s wrists was
caused by her work at Saturn. He opined that the plaintiff was able to work, provided
she observed the permanent restriction of no repetitive use of the thumbs for pinching
or gripping and avoided the use of power tools. He also said that the plaintiff should
avoid repetitive bending of her left elbow. Using the AMA guidelines, Dr. Thomas
determined that the plaintiff suffered a three percent permanent impairment to her left
upper extremity. Dr. Thomas testified on cross-examination that another method of
evaluating the permanent impairment could result in an impairment rating of six
percent to the left arm. Dr. Thomas did not assign an impairment rating to the
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plaintiff’s right wrist or hand, stating that her complaints in that regard had been
sporadic.
On February 6, 1996, Dr. David Gaw performed an independent medical
examination on the plaintiff. He reviewed records from Dr. Parsons and Dr. Thomas,
and medical records from Saturn Corporation. Relying upon that information, as well
as his own examination, he determined that Ms. Walker suffered a five percent
permanent impairment to her left upper extremity as a result of the tenosynovitis in the
left thumb and wrist. A ten percent permanent impairment resulted from the ulnar
transposition, culminating in a combined fifteen percent impairment to her left upper
extremity. In accord with Dr. Thomas, Dr. Gaw stated that the plaintiff should avoid
repetitive use of her left elbow and wrist. He found no permanent impairment to her
right arm because Ms. Walker did not report “any history of problems with that.” He
admitted, however, that the records he reviewed contained plaintiff’s complaints about
her right wrist and thumb.
Rebecca Williams, a vocational specialist, testified that she evaluated the
plaintiff on August 1, 1996, to assess any vocational disability Ms. Walker suffered
from her injuries. Ms. Williams testified that she considered the plaintiff’s limitations to
both hands and left elbow per the restrictions from Dr. Thomas and Dr. Gaw. She
characterized the plaintiff’s job as unskilled labor and said that her previous skills from
bartending and waitressing were non-transferable and of little use in any other job.
Ms. Walker previously obtained a GED and had attended some college and vocational
classes, specifically receiving training in keypunch, a now obsolete method of
computer data entry.
4
The plaintiff’s reading, spelling, and math skills were poor for her age.
Following a dexterity examination, Ms. Williams found that the plaintiff lacked dexterity
in both hands, which she considered a disabling factor.
Because the plaintiff had no transferable job skills and significant physical
limitations, Ms. Williams opined that the plaintiff had no reasonable expectation of
employment in the local job market. Of the 10,980 jobs in Maury County for which
plaintiff was qualified, only 348 were available to her because of her disability. The
number “348" represented the number of jobs and not the number of positions actually
open. Considering Ms. Walker’s education level and lack of acquired job skills,
combined with the permanent restrictions on both hands and her left elbow, Ms.
Williams testified that the plaintiff had a ninety-seven percent occupational disability.
The plaintiff testified that her work at the automobile assembly plaint required
repetitive activity with her wrist and elbow, including extensive use of power tools
during her entire ten-hour shifts. While she had previously worked as a bartender and
waitress, she testified that she could no longer perform those jobs because they
required excessive use of her wrists and elbow.
Following the first surgery on her wrist, the plaintiff said that she had been
unable to return to work as a fully functional team member because of the permanent
restrictions.2 In spite of utilizing the placement process at Saturn, Ms. Walker was
unable to find another job at the plant which she could perform given her restrictions.
She testified that she was placed on long-term disability leave May 10, 1996, and had
not worked since then. She had never done any work that did not involve repetitive
2
The assembly of automobiles at Saturn is performed in teams. A person may not be a team
member unless he or she is able to perform every task assigned to the team. The restrictions on her
hands and left elbow prevents the plaintiff from performing all the team activities.
5
use of the thumbs or bending of the elbow. In addition to experiencing pain in her
hands and wrist, the plaintiff testified that the extension of her left arm is limited, which
affects her ability to do housework and play sports.
The trial court found that the plaintiff suffered an eighty-five percent permanent
partial disability to both arms and granted her motion for a lump sum award. Upon
review, the Panel found that the expert medical testimony did not support a finding of
any permanent impairment to her upper right extremity. The Panel also determined
that the trial court’s award of an eighty-five percent permanent partial disability to the
plaintiff’s left arm was excessive and not supported by the evidence. The Panel
reduced the award based upon a finding that the plaintiff had sustained a sixty percent
permanent partial disability to her left arm.
ANALYSIS
We begin our analysis by stating a few well-settled principles. Our review of the
findings of fact made by the trial court is de novo upon the record of the trial court,
accompanied by a presumption of correctness, unless the preponderance of the
evidence is otherwise. Tenn. Code Ann. § 50-6-225(e)(2) (Supp. 1998). Because the
issue and extent of a permanent vocational disability are questions of fact for the trial
court to determine, we also review those issues under the de novo standard of review.
Jaske v. Murray Ohio Mfg. Co. Inc., 750 S.W.2d 150, 151 (Tenn. 1988); Corcoran v.
Foster Auto GMC, Inc., 746 S.W.2d 452, 458 (Tenn. 1988). In our review, we are not
bound by the trial court’s factual findings, but rather examine them in depth and
conduct an independent examination to determine where the preponderance of the
evidence lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991).
6
With the foregoing in mind, we first consider whether the evidence supported
the trial court’s finding that the plaintiff had sustained a permanent partial disability to
her right upper extremity. The Panel found no disability to the right arm because the
medical experts declined to find any permanent anatomical impairment to the
plaintiff’s right wrist or hand. However, we believe there was other evidence within the
record sufficient to support the trial court’s finding of permanent industrial disability to
plaintiff’s right upper extremity.
An anatomical impairment rating is not always indispensable to a trial court’s
finding of a permanent vocational impairment. See Newman v. National Union Fire
Ins. Co., 786 S.W.2d 932, 934 (Tenn. 1990); Corcoran, 746 S.W.2d at 457. In fact,
anatomical impairment is distinct from the ultimate issue of vocational disability that
the trial court must assess. Wilkes v. Resource Auth. of Sumner County, 932 S.W.2d
458, 463 (Tenn. 1996); Perkins v. Enterprise Truck Lines, Inc., 896 S.W.2d 123, 125
(Tenn. 1994). An employee should not be denied compensation solely because she
is unable to present a witness who will testify to the exact percentage of her medical
impairment. Corcoran, 746 S.W.2d at 457. As a result, the Panel erred in finding no
disability to the plaintiff’s right arm based solely on the lack of an anatomical rating to
that scheduled member.
In contrast, the evidence established that Ms. Walker has a disabling condition
in her right wrist and hand. On August 11, 1993, Dr. Parsons noted in plaintiff’s
medical records that she had “a little bit” of Dequervain’s extensor tenosynovitis in the
right wrist. Plaintiff later reported problems with her right wrist to the Saturn Medical
Department in October of 1994. Then, on January 26, 1995, Dr. Thomas diagnosed
the plaintiff with “right wrist Dequervain’s stenosising tenosynovitis.”
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Dr. Thomas characterized the condition as “chronic” and went on to say that
grasping or pinching activities at work would worsen her symptoms. As a result, Dr.
Thomas placed her on permanent restrictions against repetitive thumb activities such
as grasping or pinching. Dr. Thomas’ characterization of the condition as “chronic”
and the placement of permanent restrictions on the use of her right thumb is sufficient
to prove that plaintiff’s thumb and wrist condition impaired her ability to use her right
arm and that the condition was permanent. See Hill v. Royal Ins. Co., 937 S.W.2d
873, 876 (Tenn. 1996) (basing permanent impairment on the imposition of permanent
restrictions where no anatomical impairment was given).
The second issue has been redefined by our determination that the plaintiff
suffered a permanent impairment to her right hand. The proper inquiry now is whether
the evidence preponderates against the percentage of permanent partial disability to
both of plaintiff’s arms assessed by the trial court. The Panel reduced the trial court’s
industrial disability rating to her left arm because of the small anatomical impairment
rating and because of its conclusion that the proof showed an impairment only of her
ability to work at Saturn. In reaching its decision, the Panel failed to consider relevant
evidence regarding how Ms. Walker’s earning capacity had been diminished in the
open labor market.
The Panel correctly held that a vocational impairment is measured not by
whether the employee can return to her former job, but whether she has suffered a
decrease in her ability to earn a living. See Corcoran, 746 S.W.2d at 458. This Court
stated in Corcoran that a vocational disability results when “the employee’s ability to
earn wages in any form of employment that would have been available to him in an
uninjured condition is diminished by an injury.” Id. at 459.
8
In assessing the extent of an employee’s vocational disability, the trial court
may consider the employee’s skills and training, education, age, local job
opportunities, anatomical impairment rating, and her capacity to work at the kinds of
employment available in her disabled condition. Tenn. Code Ann. § 50-6-241(b)
(Supp. 1998); Worthington v. Modine Mfg. Co., 798 S.W.2d 232, 234 (Tenn. 1990);
Roberson v. Loretto Casket Co., 722 S.W.2d 380, 384 (Tenn. 1986). Further, the
claimant’s own assessment of her physical condition and resulting disabilities cannot
be disregarded. Uptain Constr. Co. v. McClain, 526 S.W.2d 458, 459 (Tenn. 1975);
Tom Still Transfer Co. v. Way, 482 S.W.2d 775, 777 (Tenn. 1972). The trial court is
not bound to accept physicians’ opinions regarding the extent of the plaintiff’s
disability, but should consider all the evidence, both expert and lay testimony, to
decide the extent of an employee’s disability. Hinson v. Wal-Mart Stores, Inc., 654
S.W.2d 675, 677 (Tenn. 1983).
The evidence showed that the plaintiff could not return to her activities at the
Saturn facility. The testimony of Rebecca W illiams also established that Ms. Walker’s
disability severely hampered her ability to earn a living in the open labor market in
Maury County.
Finally, we consider the plaintiff’s own assessment of her condition. She
testified that she is no longer able to perform the forty or fifty jobs that she has done in
her career in the automobile manufacturing industry because of the restriction on the
repetitive use of her elbow and thumbs. Likewise, the plaintiff testified that although
she has worked as a bartender and waitress, she could no longer work as a bartender
or waitress because of the demand those jobs place on her wrists and elbow. The
plaintiff has never done any work that would not require repetitive use of her thumbs
for gripping or repetitive bending of the elbow.
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Although the medical testimony did not establish a great percentage of
anatomical impairment, the trial court obviously gave substantial credence to the
testimony of the vocational expert regarding Ms. Walker’s ability to work. The record
on appeal does not preponderate against the trial court’s findings.
In view of Ms. Walker’s limited training, her education, considerable medical
restrictions, lack of transferable job skills, and the local job opportunities, the plaintiff’s
capacity to work in areas previously available to her has been significantly reduced by
her current disability. Accordingly, we conclude that the trial court’s finding of an
eighty-five percent permanent partial disability to both arms is supported by the
preponderance of the evidence. The record indicates that the employer, Saturn
Corporation, complained before the Panel of the propriety of the trial court’s judgment
commuting the employee’s disability award to a lump sum payment. The Panel did
not address that issue on the merits. Because Saturn has not raised that issue before
us, we will not address it at this time. The judgment of the trial court is affirmed in all
respects. Costs are taxed to Saturn Corporation.
_______________________________
William M. Barker, Justice
CONCUR:
Anderson, C.J.,
Birch, Holder, JJ.
Drowota, J., not participating
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