Diana Noles v. Ameristeel Corporation

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated _ 5-6-225(e)(3) for a detailed analysis of the evidence in the trial record. The trial court in this cause found that Plaintiff sustained a thirty-five percent (35%) permanent partial disability to the right and left arm. Defendant, Ameristeel Corporation, appeals and asserts that the trial court's award of thirty-five percent (35%) permanent partial disability to each arm is excessive and not supported by a preponderance of the evidence. From our review of the entire record and applicable law, the judgment of the trial court is affirmed as modified. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Affirmed as Modified. L. TERRY LAFFERTY, SR. J., in which JOE C. LOSER, JR., SP. J., and JANICE M. HOLDER, J., joined. John D. Burleson and L. Beth Williams, Jackson, Tennessee, for the appellant, Ameristeel Corporation. Paul Todd Nicks, Jackson, Tennessee, for the appellee, Diana Noles. MEMORANDUM OPINION Diana Noles (Parker), age 43, a high school graduate, testified that she has a varied employment background since high school. Plaintiff has worked as an office employee as well as performing manual labor in factories. Prior to 1993, she lived in Addison, Illinois, and moved to Tennessee that year with her ex-husband.1 Prior to her employment with MRT and Defendant, who 1The Plaintiff was a single mother up and until her marriage three months prior to trial. took over MRT, Plaintiff worked for Johnson Controls in Lexington, Tennessee, testing seat tracks for cars. When Plaintiff went to work for MRT, she was a "B" operator. This work consisted of shoveling, squeegeeing off the floor, pulling samples, and driving a forklift and front end loader. She became an "A" operator in the control room, but when Defendant took over MRT, she was transferred back to a "B" operator. Plaintiff's primary work responsibility was to keep the seal pans clean, unload coal trucks, fill charge buckets, and shovel and hoe out the seal pans which would accumulate mud. Also, this cleaning process required the use of a three-inch vacuum hose. Twenty- five percent (25%) of her work consisted of this repetitive shoveling, hoeing and vacuuming of the seal pans. Prior to February of 1999, Plaintiff had no work-related injuries. In January 1999, she advised her supervisors that her right arm felt like dead weight and was numb. She saw her family doctor who advised her that she may have carpal tunnel and to advise her employer. The company sent her to see Dr. Kenneth Warren, who referred her to Dr. Ronald Bingham for carpal tunnel testing. As a result of the test, Dr. Warren referred Plaintiff to Dr. Claiborne Christian for carpal tunnel syndrome. Eventually, Dr. Christian performed surgery on her right arm on Friday, February 26, 1999. She returned to light duty the following Monday and remained on light duty for six weeks. During this six weeks, Plaintiff was still seeing Dr. Christian every couple of weeks until she was returned to full duty. Her shoulder pain and numbness went away after surgery. Plaintiff testified that in June 1999, she began developing numbness and pain in her left hand. The company referred her back to Dr. Christian. After seeing Dr. Christian a number of times and having another test, Dr. Christian performed surgery on her left hand. Plaintiff returned to full duty in April 2. Since both surgeries, Plaintiff testified that she has re-occurring numbness/tingling, more in the right hand than the left. The numbness has affected her work and home chores in that while performing shoveling or vacuuming, she must stop and rest. She has not complained to her supervisors, as she does not want to sound "whiny." On behalf of Defendant, Mr. Jimmy Sloop, plant superintendent, testified that Plaintiff is one of his best employees. She does a good job, does not complain and approximately twenty-five percent (25%) of her work is repetitive. He would be happy to recommend her for an "A" operator position, but there are no openings and none seem to be available in the immediate future. Mr. Sloop confirmed that Plaintiff worked a twelve-hour shift, three days a week and averaged 1.3 hours of overtime daily. MEDICAL EVIDENCE Plaintiff was seen, initially, by Dr. Warren on February 9, 1999, who referred her to Dr. Bingham for a nerve conduction test. As a result of the test indicating severe entrapment neuropathy of the median nerve in right wrist, Dr. Warren referred Plaintiff to Dr. Christian for possible carpal tunnel release. Dr. Christian, an orthopedic specialist, filed a C-32, Department of Labor Standard Form Medical Report for Industrial Injuries on October 16, 2. Utilizing the AMA Guidelines for evaluation of permanent impairment, Dr. Christian opined that Plaintiff sustained a two percent (2%) -2-