Dorothy Marable v. Key Industries, Inc.

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 employer, Key, and its insurer, Travelers, insist the chancellor erred in (1) awarding benefits as a percentage to the body as a whole, (2) making an award in excess of six times the highest medical impairment rating and (3) awarding benefits based on one hundred percent to the body as a whole. As discussed below, the panel has concluded the award should be modified down to one based on forty-eight percent to the body as a whole. Our review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). Conclusions of law are subject to de novo review on appeal without any presumption of correctness. Spencer v. Towson Moving and Storage, Inc., 922 S.W.2d 58 (Tenn. 1996). The employee or claimant, Marable, was 62 years old at the time of the trial. She has less than a high school education. She worked in Key's shirt factory for 23 years, sewing stays in collars of dress shirts. She has suffered three separate work related injuries, all three of which are the subject of this litigation. (1) The employer and its insurer contend first that because the claimant has three separate injuries to three separate scheduled members, or to two separate scheduled members if the arms are considered together, the claimant's injury should somehow be considered a scheduled injury and recovery limited to a percentage of weeks provided in the statutory schedule. From a consideration of the authorities cited and others, we respectfully disagree. Where a worker's only injury is to a scheduled member, he may receive only the amount of compensation provided by the schedule for his permanent disability. Genesco, Inc. v. Creamer, 584 S.W.2d 191 (Tenn. 1979). This claimant has three separate injuries to three separate members, all of them scheduled separately. If an employee suffers permanent partial disability to two members listed together as a scheduled injury, it is proper to compute the period of disability according to the schedule. Queen v. New York Underwriters Ins. Co., 222 Tenn. 235, 435 S.W.2d 122 (1968). While both arms are listed together as a scheduled injury, we find no listing in the schedule for both arms and a foot. See Tenn Code Ann. section 5-6-27(3)(A)(II). In all other cases of permanent partial disability, benefits are payable according to the percentage of disability to the body as a whole, which is valued at four hundred weeks; Tenn. Code Ann. section 5-6-27(3)(F); Kerr v. Magic Chef, 793 S.W.2d 927 (Tenn. 199); and an injury to three or more members of the body, whether or not any of the members is included in the schedule, is not a scheduled injury and, in such case, benefits are allowable to the body as 2