Cynthia L. Ursery v. Liberty Mutual Insurance Group,

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 hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this case, the employer appeals the trial court's award of 8% permanent partial disability to the employee where 1) the medical proof established a 5% anatomical impairment to both elbows; and 2) a vocational expert gave the employee a 9% vocational disability rating based on loss of access to 9.4% of the jobs available to her prior to her injury due to her permanent medical restrictions. We find that the evidence does not preponderate against the trial court's findings, and therefore the award is not excessive. We affirm the judgment of the trial court in all respects. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed. JAMES L. WEATHERFORD, SR. J., in which JANICE HOLDER, J., and JOE C. LOSER, JR., SP. J., joined. David T. Hooper, Brentwood, Tennessee, for the appellants, Liberty Mutual Insurance Group and United Parcel Service, Inc. H. Tom Kittrell, Jr., Nashville, Tennessee, for the appellee, Cynthia Ursery. MEMORANDUM OPINION Mrs. Cynthia Ursery, the employee-appellee, was 46 years old at the time of trial. She graduated from high school in 1972 and has had no further educational training. From 1979 until April of 21, Mrs. Ursery worked for United Parcel Service (UPS), the employer-appellant, on a part-time basis. For a number of years she "bagged" small packages by pulling, pushing, or lifting the packages into bags and in turn putting the bags onto a conveyor belt. These packages were supposed to be limited to 1 pounds but at times exceeded 2 pounds in weight. Mrs. Ursery estimated she sorted 2, to 4, packages a night. For at least 1 years of her employment with UPS, she sorted individual small packages. In this job she was required to pick up the package and move her palms into an upright position continuously to read the label on the packages to place them in the correct bin. Other job duties she performed at UPS included loading and fueling trucks, and driving local routes. From 1988 to 1992, Mrs. Ursery also worked at Castner Knotts as a sales clerk where her job duties included unpacking clothes and hanging the items on display racks. In June of 1998, Mrs. Ursery saw Dr. Robert Russell because she had been experiencing pain in her left elbow. Dr. Russell prescribed medicine and gave her an "arm bandit." She returned to Dr. Russell in the fall of 1998 complaining of right elbow pain for which he also prescribed an "arm bandit." In January of 1999, she received two cortisone shots which only seemed to increase the pain in her elbows. Mrs. Ursery sought additional medical care and chose Dr. Jane Siegel from a panel presented to her by UPS. Dr. Siegel took Mrs. Ursery off work for about 5 or 6 weeks. Though her elbows improved with rest, as soon as she returned to work, her pain resurfaced. Dr. Siegel diagnosed chronic medial epicondylitis and performed surgery on Mrs. Ursery's right elbow in May of 1999. Mrs. Ursery returned to work with restrictions. UPS assigned her to a light duty job fueling trucks and driving them short distances across the yard. Mrs. Ursery began to have trouble pulling herself into the trucks and eventually re-injured her right elbow in May of 2. She was put on medical leave until September of 2, when she returned to work sorting light- weight letters. Mrs. Ursery's elbow pain continued. Consequently, Dr. Siegel placed her on permanent restrictions of lifting no more than 5 pounds and of making no highly repetitive motion of her wrist for more than 1 hour at a time. Dr. Siegel found that Mrs. Ursery had reached maximum medical improvement on April 2, 21, and assigned a 5% anatomical impairment rating to both elbows. In April of 21, UPS terminated Mrs. Ursery's employment because it had no work available that she could perform within her medical restrictions. She was earning $2. per hour at the time of her termination. Ms. Rebecca Williams, a Certified Vocational Evaluation Specialist, testified at trial on behalf of Mrs. Ursery. As part of a vocational evaluation performed in August of 21, Ms. Williams interviewed Mrs. Ursery for over 3 hours, administered the Wide Range Achievement Test -2-