Kay E. Blackwood, Jr. v. The Berkline Corp., et al.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The appellants contend (1) the award of permanent partial disability benefits is excessive, (2) it was error for the trial judge to become a witness in the case and (3) the trial judge abused his discretion by commuting permanent partial benefits to a lump sum. As discussed below, the panel has concluded the award of permanent partial disability benefits should be modified and, as modified, paid in a lump sum, and the evidential remarks of the trial judge were harmless in light of our modification. The claimant, Kay Eugene Blackwood, Jr., is thirty-nine years old with a high school education and vocational training as an automobile mechanic and some college training as a minister of the gospel. He gradually developed bilateral carpal tunnel syndrome from the repetitive use of his hands at work for employer, Berkline. The employer referred him to Dr. James B. Talmage. The doctor diagnosed bilateral carpal tunnel syndrome and prescribed braces for both wrists. He restricted the claimant from repetitive work with his right hand and recommended wearing the braces while sleeping. The claimant was totally disabled for several weeks. The doctor assigned zero percent permanent impairment, but acknowledged some loss of grip strength and conceded that, on the basis of lost grip strength, the AMA Guidelines provided twenty percent permanent impairment to the right arm and ten percent to the left, using a method the doctor considered inappropriate. Dr. Talmage did not concede the loss of grip strength was permanent. Dr. Randy Gaw, a neurologist, diagnosed mild right carpal tunnel syndrome but found no evidence of "left median nerve mononeuropathy" or "generalized neuropathic or myopathic process involving the upper extremities." The claimant returned to work for the employer. Dr. S. M. Smith, who did not treat the claimant but evaluated him, diagnosed moderate carpal tunnel syndrome on the right and mild carpal tunnel syndrome on the left. He assigned twenty percent permanent impairment to the right hand and ten percent to the left. The trial court awarded, among other things, permanent partial disability benefits based on fifty percent to each arm, commuted to a lump sum. Appellate review 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. section 5-6-225(e)(2). This tribunal is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.