Jason Key v. CNA Insurance Company, and TRW Commercial Steering Division

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer contends that the trial court erred by (1) finding that the employee suffered any vocational disability; and (2)finding that the employee was entitled to the twenty-five percent (25%) bad faith penalty for certain medical expenses. Finding that the evidence preponderates against the finding of any vocational disability in this case, we reverse the trial court's award of permanent partial disability benefits. Because the employee never asserted a claim for the bad faith penalty prior to the trial in this case, we reverse the award of the bad faith penalty. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Macon County Chancery Court, Reversed in part, Affirmed in part, and Remanded. JEFFREY S. BIVINS, SP. J., in which ADOLPHO A. BIRCH, JR., J, and CLAYBURN PEEPLES, SP. J., joined. Richard Lane Moore, Moore, Rader, Clift & Fitzpatrick, Cookeville, Tennessee, for the Appellants, CNA Insurance Company and TRW Commercial Steering Division. William Joseph Butler, E. Guy Holliman, Farrar, Holliman & Butler, Lafayette, Tennessee, for the Appellee, Jason Key. MEMORANDUM OPINION I. Facts The Plaintiff, Jason Key ("Key"), was thirty years of age at the time of the trial in this action. He graduated from high school. He had learned some welding skills in high school. Otherwise, he had no other certificates, degrees, or special training. His work history consists primarily of physical labor, including farm work, welding at a factory, and production work at TRW Commercial Steering Division ("TRW"), one of the defendants in this action.1 Mr. Key's job with TRW required him to set up assembly lines and keep them running. On July 15, 23, Mr. Key was attempting to repair a machine on the assembly line. While he was repairing this machine, he was hit in the head with a steel bar approximately five-eighths of an inch in diameter and between twelve and fourteen inches long. Key suffered a laceration to his forehead as a result of this accident. The laceration measured one inch or 2.2 centimeters in length. Key was taken to the emergency room where Dr. John Butcher treated him. Dr. Butcher irrigated the wound and used five stitches to close the cut. Dr. Butcher then released Key to return to work. Key returned to work the day following the accident. Key never missed a day of work as a result of the accident. Key subsequently requested additional medical care from TRW. As a result of that request, Dr. Roy Johnson, an occupational medical specialist, evaluated Key on November 13, 23. Dr. Johnson also referred Key to a plastic surgeon. On March 22, 24, Key was examined by Dr. J.D. Rosdeutscher, a plastic surgeon. Dr. Rosdeutscher examined Key and recommended surgery to revise the scar and remove a cyst that had developed. On April 7, 24, Dr. Rosdeutscher performed the surgery. Due to the size of the cyst, Dr. Rosdeutscher had to perform an open "complex closure" on the wound. Dr. Rosdeutscher felt Key made an excellent recovery. Key did complain of some sensation problems or numbness around the injury site. Dr. Rosdeutscher felt the issues were due to injury to the supraorbital nerve. The supraorbital nerve gets sensation to the forehead. Dr. Rosdeutscher testified that the supraorbital nerve is purely a sensory nerve. It does not provide any motor function. Therefore, it would not cause any loss of function in the muscles in the forehead. Dr. Rosdeutscher concluded that Key suffered a partial sensory loss, but this did not cause any functional impairment. Dr. Rosdeutscher also did not place any permanent restrictions on Key. Finally, Dr. Rosdeutscher opined that Key had no permanent impairment and that this nerve injury would not affect Key in any way vocationally. Key also saw Dr. Robert Landsberg, a board certified orthopaedic surgeon. Dr. Landsberg concurred with Dr. Rosdeutscher's diagnosis that Key suffered an injury to the supraorbital nerve. Dr. Landsberg opined that the nerve injury was permanent. In contrast to Dr. Rosdeutscher, Dr. Landsberg assigned Key seven percent (7%) impairment to the body as a whole due to his discomfort, numbness, and loss of sensation. 1Although CNA Insurance Co. also is a named defendant in this case, we will refer to both defendants as "TRW " for the sake of simplicity. 2