Melissa Suzanne Dew v. Pro-Temp

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court awarded the employee 2 percent permanent partial disability to her right hand. The employee appeals insisting the court had used the multiplier statute in computing the award and that the statute does not apply to scheduled member injuries. The judgment is modified to award the employee 4 percent to the right hand. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Modified and Affirmed. THAYER, SP. J., in which ANDERSON, J., and BYERS, SR. J., joined. Roger E. Ridenour, of Clinton, Tennessee, for Appellant, Melissa Suzanne Dew. B. Chadwell Rickman, of Knoxville, Tennessee, for Appellee, Pro-Temp. MEMORANDUM OPINION The trial court awarded the employee, Melissa Suzanne Dew, 2 percent permanent partial disability to her right hand. The employee has appealed insisting the court had restricted her recovery to two and one-half times the 8 percent medical impairment and that the multiplier statute does not apply to scheduled member cases. Facts The employee is a high school graduate and was 26 years of age at the time of the trial. After high school, she had some vocational training in office technology and data processing. She was employed by defendant, Pro-Temp, and was working on the assembly-line at Eagle Bend Manufacturing Company, Inc., on February 5, 1998, when she was injured. The work in progress involved the manufacture of automobile trunk hinges. She testified that the machine had jammed and while working with it, the machine "pinched her." At the time she was wearing gloves but her right index finger was cut and later began to swell. She went to the emergency room and was released to see a regular physician who eventually referred her to an orthopedic surgeon. Dr. John M. Ambrosia, an orthopedic surgeon, testified by deposition and stated he prescribed therapy treatments initially but then recommended surgery since she had not made a lot of progress. Surgery was performed on June 12, 1998, and resulted in freeing up the scar tissue around the extensor tendon and the joint of the finger. After surgery, therapy was resumed and he released her to return to work without any restrictions. The doctor stated she would have a 42 percent impairment to her right finger. The employee was also seen and examined by Dr. Geron Brown, an orthopedic surgeon, for an independent medical examination. He testified by deposition and said she had sustained a crushing injury with laceration and that the fracture of her finger had healed; that she was right hand dominant and the medical impairment would be 42 percent to the finger and 8 percent to the hand. When he was asked about returning to work with restrictions, he replied that because of the limited motion of the hand, there would be activities that she would either have difficulty with or simply could not do. He did not place permanent restrictions because when he saw her she was working at another job although the functional capacity evaluation recommended she should work at a level less than medium work. In describing the present condition of her injury, the employee testified she could not straighten out her finger; that it stayed cold most of the time; that she had problems in gripping things with her hand and that when she used her hand a lot, she would have pain down the center of the palm of her hand. She testified the strength of her hand was not near what it used to be. With regard to the pain down the center of the palm of her hand, she said she had been told this was because of the tendon on the front side of her finger. In rendering a decision, the trial judge originally awarded the employee 42 percent disability to the right hand. Upon defense counsel inquiring if he had made a mistake in the 42 percent award since this exact percent was given to the finger only, the court retracted the award and asked if the multiplier statute applied. When advised it had no application to a scheduled member injury, the court announced the award would be fixed at 2 percent to the right hand. After entry of the judgment, the employee filed a motion for new trial insisting the recovery had been reached by using the multiplier of two and one-half times the 8 percent medical impairment. The court stated his decision was not reached by that computation and that he had considered the usual factors in assessing the evidence and fixing the 2 percent disability to the hand. -2-