Express Personnel Services, Inc. v. Donna M. Belcher

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer contends that the trial court improperly considered the claimant's criminal record, her responsibility for five children, her lack of reliable transportation, and her financial need in determining the claimant's vocational disability rating. As discussed below, the panel has concluded that the judgment of the trial court should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which FRANK F. DROWOTA, III, C. J., and TOM E. GRAY, SP. J., joined. Fred C. Statum, Nashville, Tennessee, for the appellant, Express Personnel Services, Inc. Andrew J. Blackwell, III, Madison, Tennessee, for the appellee, Donna M. Belcher MEMORANDUM OPINION The employee or claimant, Belcher, is thirty-seven years old and a high school graduate. Her work experience has primarily been in production, but she has also been a cook and waitress. She has a felony drug-trafficking conviction and two assault convictions. The claimant began working for the appellant, Express Personnel Services, Inc., in March of 2 at Dominos Pizza National Distribution Center. In June of the same year, she suffered a hyper extension injury to both wrists when she attempted to catch a falling stack of twenty to thirty trays. The parties stipulated that the injury occurred in the course of the claimant's employment and that notice of the injury was properly given to the employer. Once she began undergoing treatment for her injury, she did not return to her job at Dominos. The claimant underwent physical therapy and a right carpal tunnel release. After the surgical release was performed, the claimant developed clenched-fist syndrome in which she could not open her right hand. With physical therapy, the condition of the right hand improved, but the claimant testified that she still experiences pain and numbness in both hands. In April 21, her treating physician released her at maximum medical improvement, assessing her anatomic impairment at five percent to both upper extremities. The claimant's physician restricted her from repetitive use or heavy gripping of the right hand, and from more than occasional bilateral heavy gripping. Additionally, he recommended that she avoid repetitive work or other activity that causes pain in her hands. At trial, the claimant and two corroborating witnesses testified the claimant suffered from pain in her hands and was unable to perform manual tasks she had been able to perform before her injury. The trial court awarded permanent partial disability benefits based on 6 percent to both arms. The chancellor specifically found that the claimant would be unable to obtain employment that involved security or cash-handling because of her prior felony conviction. This is a case of first impression in Tennessee. It raises the question of whether an employer's liability should be reduced because a claimant's criminal history affects the availability of employment to the claimant. Stated in the reverse, the question is whether a claimant's criminal record is a pertinent factor that should be weighed by the court when determining the extent of a claimant's vocational disability. In determining the extent of an injured worker's vocational disability, a trial court is to weigh the anatomic impairment rating, lay and expert testimony, and pertinent factors such as "the employee's skills and training, education, age, local job opportunities and his capacity to work at the kinds of employment available in his disabled condition." Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 458-59 (Tenn. 1988) (quoting Robertson v. Loretto Casket Co., 722 S.W.2d 38, 384 (Tenn. 1986). The appellant claims that the permanent partial disability award is excessive because the trial court improperly considered factors such as the claimant's criminal record, her responsibility for five children, her lack of reliable transportation, and her financial need. While the appellant is correct in asserting that a claimant's financial need and domestic responsibilities are not appropriate factors to be considered in determining vocational disability, the trial court did not base its decision thereon. A careful reading of the trial court's order reveals that the court actually based the claimant's sixty percent permanent partial disability upon only the following factors: the claimant's uncontroverted medical impairment rating, her education, her employment history, her testimony regarding the tasks she can no longer perform as a result of her injury, and the impact her criminal -2-