SUSAn J. Smith v. S-R of Tennessee

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated section 5-6-225(e) (3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, Employer argues that the trial court's award of benefits based on 55% permanent partial disability to the right upper extremity and 45% permanent partial disability to the left upper extremity is excessive and is not supported by a preponderance of the evidence. We conclude that the evidence fails to preponderate against the trial court's award, and therefore, we affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Trial Court Affirmed JANICE M. HOLDER, J., in which ROBERT L. CHILDERS, SP.J., and WILLIAM B. ACREE, SP. J., joined. William B. Walk, Jr., Memphis, Tennessee, for the appellant, S-R of Tennessee. J. Thomas Caldwell, Ripley, Tennessee, for the appellee, Susan J. Smith. MEMORANDUM OPINION FACTUAL BACKGROUND At the time of trial, the appellee, Susan J. Smith ("Employee"), was fifty-nine years old. She has a high school education. Employee has been a housewife and has performed secretarial work. She also has worked on a conveyor line, built furniture, and stocked and packed compact disks. In December 1999, Employee began working at S-R of Tennessee ("Employer") as an inspector on an inspection line. In April 2, Employee saw Dr. Salman Saeed with complaints of neck pain and pain in the hands. He performed a nerve conduction study, and the results were consistent with bilateral carpal tunnel syndrome. In November 2, Employee saw Dr. Michael Heck, a panel physician, complaining of bilateral wrist pain. Dr. Heck performed a carpal tunnel release on Employee's right wrist in November 2, and in January 21, he performed a carpal tunnel release on her left wrist. Dr. Heck found no permanent impairment as a result of bilateral carpal tunnel syndrome. Employee was later diagnosed as having a separate injury to her right wrist (a tear of the triangular fibrocartilage complex ("TFCC ")), and Dr. William L. Bourland performed surgery for this problem in August 21. He assigned a 5% anatomical impairment rating for this injury. Dr. Joseph Boals, III, who performed an independent medical evaluation of Employee, assigned an anatomical impairment rating to each upper extremity based upon bilateral carpal tunnel syndrome and assigned an additional impairment rating to the right upper extremity for the TFCC tear. He rated Employee's anatomical impairment at 19% to the right upper extremity and 1% to the left upper extremity. Dr. Boals explained that he assessed Employee's impairment using the most recent edition of the AMA Guides. In February 23, Dr. Saeed performed another nerve conduction study, and it showed that although Employee evidenced "mild improvement" from the earlier study in 2, she continues to have symptoms of bilateral carpal tunnel syndrome. He opined that these injuries are permanent. Employee returned to full-duty work for Employer. However, Employer later laid off a substantial number of people, including Employee. Employee testified that she continues to have pain, numbness and weakness in her right hand, despite the surgery. She said that she wears a brace on her hand while driving but that she still experiences pain when turning or twisting her arm. She stated that she has difficulty squeezing, cutting, grasping, using power tools and doing fine needlework. Employee also said that she cannot take the top off a soda bottle or a jar and cannot lift heavy plates. In addition, she explained that she is unable to cast a fishing rod or throw a Frisbee with her dog. She still hurts "all the time." The trial court found that Employee sustained a vocational impairment of 55% permanent partial disability to the right upper extremity and a 45% permanent partial disability to the left upper extremity.1 1An injury to both arms is a scheduled injury. See Tenn. Code Ann. _ 5-6-27 (3)(A)(ii)(w) (1999). To conform to the statute, a trial court should average the disability rating to each upper extremity in order to make a single award for both arms. Scales v. City of Oak Ridge, 53 S.W .3d 649, 651 n.1 (Tenn. 21); Drennon v. Gen. Elec. Co., 897 S.W .2d 243, 247 (Tenn. W orkers' Comp. Panel 1994). W e note, however, that properly calculated, the total number of weeks of benefits would remain the same. -2-