James Arthur Smith v. Sentry Insurance Company

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 to the Supreme Court of findings of fact and conclusions of law. The defendant,Sentry Insurance Company (Sentry), insurer for the employer, Kolpack (Kolpack), appeals the judgment of the McNairy Chancery Court awarding the plaintiff, James Arthur Smith (Smith), forty percent (4%) permanent partial disabilityto the right arm and twenty percent (2%) permanent partial disability to the left arm. For the reasons stated in this opinion, we affirm the judgment of the trial court as modified to a single award of thirty percent (3%) permanent partial disability to both arms. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified MALOAN, SP. J., in which HOLDER, J., and WEATHERFORD, SR. J., joined. David J. Deming, Nashville, Tennessee, for the appellant, Sentry Insurance Company. Lloyd R. Tatum, Henderson, Tennessee, for the appellee, James Arthur Smith. MEMORANDUM OPINION At the time of this trial, Smith was sixty (6) years old. He left school after the fifth (5th) grade to work on the family farm, but he can read and write. Before he retired in January 1997, he worked for Kolpack foreleven (11) years. Smith built refrigerator motors; welded refrigerator bases; and assembled refrigerator bases with an air-driven screwdriver or "airdriver." Smith would hold the airdriver in his right hand and put pressure on it with his left hand. In August or September 1996, Smith began to have problems with the screws twisting off causing his right arm to strike the base of the refrigerator. On one occasion in October 1996, he hit his right arm so hard he thought it was broken. Smith began to have pain, numbness, and loss of grip strength in his right hand. After the October 1996 injury, Smith was pulled off the assembly job in which he used the airdriver. He was then assigned a job where he pulled tape off metal parts with his left hand because he was unable to use his right hand. After a few days, he could not do this job due to numbness, pain, night cramps, and loss of grip strength in his left hand. Smith was transferred to an inspection job and then to a painting job which he did with his left hand. He was only able to work twenty (2) hours a week until he retired in January 1997. Smith testified he did not have any problems with either hand before October 1996. Smith suffers from a pre-existing condition known as peripheral neuropathy, a disease of the peripheral nerves. Beginning in 1991, his feet were cold and numb, and he had problems walking. He smokes cigarettes and drinks six (6) or more beers every day. Smith was treated by Dr. Karl Edward Misulis, a neurologist, who first saw him on November 19, 1996, for back and leg pain. He gave a twenty (2) year history of back and leg pain. An earlier EMG byDr. Jim King disclosed mild carpal tunnel syndrome of the right arm. Dr. Misulis felt Smith had possible spinal stenosis and moderate neuropathy possibly related to his alcohol use. Dr. Misulis explained neuropathy as a degenerative nerve disease with many causes such as diabetes, thyroid problems, vitamin B-12 deficiencies, foliate deficiencies, syphilis, and cancer; but it is "usually not an occupational induced condition." Work activities would increase pain, but would be temporary. When asked if the carpal tunnel syndrome in Smith's right arm was work related, Dr. Misulis replied, "It certainly could be." Dr. Misulis felt the carpal tunnel syndrome was superimposed on the neuropathy which can also cause pain and numbness in his arms. Dr. John Neblett, a neurosurgeon, saw Smith on December 16, 1996, on referral from Dr. Jim King, for right hand pain. Smith gave a history of suffering contusions to the soft tissue of the right hand due to the forceful use of the airdriver. Dr. Neblett felt Smith's right hand problems were not permanent and clinically he did not appear to have carpal tunnel syndrome. He further expressed the opinion that Smith's work had no effect on his peripheral neuropathy. Dr. John Brophy, a neurosurgeon, saw Smith on February 18, 1997, for an evaluation of his peripheral neuropathy. Smith gave a history of right hand pain since October 1996 from using the airdriver and left hand pain since January 1997 from painting. Dr. Brophy's examination was consistent for peripheral neuropathy which, in his opinion, was neither caused by nor advanced by Smith's work. Dr. Robert Barnett, an orthopaedic surgeon, examined Smith for the purpose of an independent medical evaluation on August 11, 1997. Dr. Barnett took a history of pain and weakness in both hands. Dr. Barnett agreed the peripheral neuropathy was not work related, but felt Smith's work at Kolpack aggravated the neuropathy in both arms. Grip strength testing disclosed forty (4) pounds on grip on the left hand and ten (1) pounds on the right hand instead of the expected normal of one hundred (1) pounds from a man Smith's age. Dr. Barnett felt Smith's drinking, smoking, and other health problems could contribute to his neuropathy and assigned a ten percent (1%) permanent impairment to the right arm and a five percent (5%) permanent partial -2-