Cherre Howard v. Granite State Ins. Co.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer's insurer, Granite State Insurance Company, contends the chancellor erred in awarding permanent partial benefits based on sixty-five percent to the body as a whole. As discussed below, the panel has concluded the judgment should be affirmed. Our review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). The extent of an injured worker's vocational disability is an issue of fact. Jaske v. Murray Ohio Mfg. Co., Inc., 75 S.W.2d 15 (Tenn. 1988). The employee or claimant, Cherre Howard, is sixty-four years old and has a high school education and experience in collections and clerical work. For the sixteen years preceding her injury, she worked as a collector for Professional Adjustment Service. On February 29, 1996, she fell down a flight of stairs while leaving work, dislocating her left shoulder. She later reported to the emergency room at Southern Hills Hospital, where a physician fractured both bones in her forearm, while unsuccessfully attempting to manipulate her shoulder into its socket. She subsequently saw another doctor at the same hospital, who twice performed open surgery to cure the injuries. The claimant returned to the operating doctor for follow-up care and he ultimately released her with an estimated eight percent permanent whole body impairment rating. However, the doctor concedes the claimant's condition worsened after he last saw her. When her condition worsened, she was referred to Dr. Allen Anderson, who assigned a permanent whole person impairment rating of nineteen percent and who restricted her from lifting more than ten pounds, from lifting any weight frequently and from pushing, pulling or climbing. The doctor diagnosed arthrofibrosis and a torn rotator cuff, which could not be repaired because of lack of bone. He testified the claimant could not use her injured arm. The chancellor, giving greater weight to Dr. Anderson's opinion, first awarded disability benefits based on seventy percent to the body as a whole, then reduced the award to one based on sixty-five percent to the body as a whole. The claimant has returned to work, but earns less than before the accident. The employer's insurer insists the chancellor erred in accepting the opinion of Dr. Anderson, who saw the claimant only once, instead of the opinion of the operating surgeon and because the claimant has been reasonably successful in her return to work. The employee insists the testimony of the operating surgeon can be discounted because her condition admittedly worsened 2