Opinion
No. 03S01-9811-CH-00139.
November 3, 1999.
Appeal from Hamilton Chancery Court, Hon. Frank Brown, Chancellor
AFFIRMEDFor the Appellant: Daniel J. Ripper, Luther-Anderson, PLLP
For the Appellee: Jeffrey W. Rufolo, Summers Wyatt, P.C.
Members of Panel: Chief Justice E. Riley Anderson, Senior Judge John K. Byers, Special Judge Roger E. Thayer
MEMORANDUM OPINION
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. § 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law.
At the time of the trial of this case, the plaintiff was 36 years of age. She had obtained a basic adult education but had no particular vocational training. Prior to working for the defendant, the plaintiff worked primarily in convenience stores.
The plaintiff sustained an injury to her right shoulder and elbow as a result of an accident in the course of her employment with the defendant. The accident occurred on August 8, 1996. After prolonged treatment, she underwent surgery on June 9, 1999, to repair a torn rotator cuff. The treating physician found an 8 percent whole body disability.
The trial judge awarded the plaintiff 45 percent vocational disability to the body as a whole.
The defendant says the evidence does not support an award of 45 percent, and further says that award is more than 5 times the medical impairment rating given by the doctor and is not supported by specific findings by the trial judge in accordance with the requirements of Tenn. Code Ann. § 50-6-241(c).
We affirm the judgment of the trial court.
Tenn. Code Ann. § 50-6-241 requires the court to make specific findings of fact detailing the reasons for awarding maximum impairment if the court awards more than five percent impairment to an injured employee. In making an award of more than five percent, the court shall consider "all pertinent factors, including lay and expert testimony, employee's age, education, skills and training, local job opportunities, and capacity to work at types of employment available in claimant's disabled condition." Tenn. Code Ann. § 50-6-241(c). The plaintiff's treating physician was of the opinion the plaintiff could not do any overhead work or repetitive lifting with her right arm and that she suffered an 8 percent vocational disability. The plaintiff was discharged by the defendant because the restrictions placed on her could not be accommodated on the job. The plaintiff sought and obtained work at various places but was unable to do many of the jobs because of her inability to do any significant lifting. In fixing the award, the trial judge found, inter alia:
Looking at the other factors, the Court notes that the plaintiff is 36 years old. She has a high school education. She has little formal education above the high school level. She has had skills that she has developed with the use of some computers, and she has been trained as a receptionist and also been trained as a manager of a convenience store and as a cashier. The management position and other employments at convenience stores generally involved lifting and carrying of weighty objects.
She has testified with regard to the applications that she has put in for employment at various places, as well as the discussions she has had with a former employer and others regarding her disability and how that affects her ability to do certain jobs.
* * * *
It is obvious to the Court that this young lady is not able to make the kind of money that she was making at Wheland for the time that she was there.
The above finding, in our view, satisfies the requirement of Tenn. Code Ann. § 50-6-241(c), and supports the award of more than five times the medical impairment rating. The evidence does not preponderate against the judgment of the trial court and we affirm the same.
The defendant asks us to reduce the award in the case to something similar to an amount an award was reduced in a case passed upon by the Worker's Compensation panel, which is similar to this case. Proportionality review is not applicable to worker's compensation cases.
The costs of the appeal are taxed to the defendant.
_____________________________________ John K. Byers, Senior Judge
CONCUR:
_______________________________________________________________ E. Riley Anderson, Chief Justice
_______________________________________________________________ Roger E. Thayer, Special Judge