Opinion
No. M2002-01374-WC-R3-CV.
Filed May 23, 2003.
Direct Appeal from the Circuit Court for Macon County; No. 4695; J.O. Bond, Judge Sitting by Interchange.
Affirmed.
Randolph Anderson Veazey, Nashville, Tennessee for the appellant Safety National Casualty Corporation.
E. Guy Holliman and William Joseph Butler, Lafayette, Tennessee, for the appellee Lisa Gregory.
James L. Weatherford, Sr.J., delivered the opinion of the court, in which Frank F. Drowota, III, C.J., and Joe C. Loser, Jr. Sp.J., joined.
MEMORANDUM OPINION
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found that the employee, who suffered from carpal tunnel syndrome caused by her job activities, had sustained a 45% permanent partial disability to her left arm and a 30% permanent partial disability to her right arm. The defendant contends that the trial court erred: 1) in not granting a motion to continue the case; 2) in assessing permanent vocational disability; and 3) as to the manner of payment of the non-commuted portion of the award. For the reasons set out in this opinion, we affirm the judgment of the trial court.
Mrs. Lisa Gregory was 32 years old at the time of trial and is a married mother of two children. She completed the 8th grade, passed the GED examination, and took one secretarial training course. She has worked as a dishwasher, janitor, seamstress, data entry clerk, assembly line worker, and office worker doing typing and billing. Mrs. Gregory has done "mostly factory work" during her work life, and had never had any problems with her hands or arms prior to 2001.
Mrs. Gregory has worked for FM Furniture in Lafayette, Tennessee, for approximately six years constructing upholstered furniture. She sewed upholstery upon the backs of sofas, and sewed "the bundles" on the arms and front railings of sofas. This job involved repeated pushing, pulling, twisting, and power gripping.
According to Mrs. Gregory, she began waking up at night with hand numbness in early 2001. By April of that year, she was experiencing tingling in both hands and pain in her left elbow. After reporting her injury to FM, she saw Dr. Ladd, her personal physician, who gave her injections in both hands and prescribed oral medication.
When her problems did not resolve, she picked Dr. Arthur R. Cushman from a panel of three physicians. On June 8, 2001, she saw Dr. Cushman who diagnosed mild bilateral carpal tunnel syndrome, caused by her job activities at FM Furniture. He placed her on restrictions of no lifting greater than 15 pounds repetitively, no repetitive wrist rotations, and no strenuous pushing, pulling or grabbing. He treated her conservatively with splints, exercises, and medication. Dr. Cushman indicated that Mrs. Gregory had complained of elbow problems one time and that he didn't really treat her for it.
At some point after her injury, FM moved Mrs. Gregory to the "cutting table" job which required her to lift one end of 40 to 50 pound rolls of fabric and involved repetitive gripping of scissors. She still had to do the bundle job on occasion. When Dr. Cushman saw her on October 15, 2001, Mrs. Gregory indicated "that her symptoms had significantly improved, she was doing a different kind of job, and was happy with that so I released her."
Dr. Cushman found that she had reached maximum medical improvement as of October 15, 2001. He did not recommend surgery for Mrs. Gregory and assigned no permanent impairment. He instructed her to avoid the type of job that tended to aggravate her symptoms.
During the course of her care with Dr. Cushman, Mrs. Gregory had a normal MRI and two normal EMG studies. Dr. Cushman based his opinion that she had no permanent impairment on the two negative EMG studies, and the fact that she had reported to him that she was having minimal symptoms. He told Mrs. Gregory to come back for further treatment if she continued having problems. Dr. Cushman did concede that his opinion could change if she had continued to have symptoms and had later had a positive EMG and nerve conduction study showing bilateral carpal tunnel syndrome with evidence of muscle membrane instability.
On February 4, 2002, Mrs. Gregory saw Dr. Robert Landsberg, board certified orthopedic surgeon, for an independent medical evaluation. Dr. Landsberg reviewed an EMG study performed by Dr. Prakash on December 6, 2001, which was positive for bilateral carpal tunnel syndrome. Dr. Landsberg noted that his clinical tests for carpal tunnel syndrome were positive and that Mrs. Gregory had weakened grip strength bilaterally and tenderness over the left medial epicondyle at the elbow.
Dr. Landsberg diagnosed bilateral carpal tunnel syndrome with left medial epicondylitis caused by her work activities at FM Furniture. He recommended bilateral carpal tunnel surgery and further conservative treatment for left elbow tendinitis. He assigned 5% permanent partial impairment to each upper extremity due to residual carpal tunnel syndrome with abnormal electrical findings based upon the most recent edition of the AMA Guides. He assigned the following permanent restrictions:
. . . . no repetitive gripping, squeezing with either hand, and no pounding with the wrist, lifting with the left hand should be a maximum of ten to fifteen pounds, rarely-five to ten pounds, more occasionally. She should avoid the use of vibratory pneumatic tools.
Dr. Landsberg indicated that the lifting restriction applied only to the left side and was due solely to her epicondylitis in the left elbow.
Mr. Billy Huffines, the plant manager at FM, found Mrs. Gregory to be a good worker who was truthful. He confirmed that the cutting table job violated Dr. Landsberg's permanent restrictions.
Mrs. Gregory has trouble with household chores such as dishwashing, vacuuming, and sweeping floors. Upon performing these activities, she has pain and tingling in both hands and wrists and left elbow pain. Her symptoms get worse after getting off work___"my arms feel heavy after working all day." Mrs. Gregory's husband of 14 years, Mr. Audie Gregory, testified that his wife never had any problems with housework prior to her work injuries.
Mrs. Gregory stated that given her permanent restrictions, the only jobs she could potentially return to were the office worker jobs where she had earned $6.00 an hour. She was earning over $12.00 an hour at the time of her injury.
This case was tried on February 25, 2002. Prior to trial counsel for defendant moved for a continuance asserting that it was premature to try this case because Dr. Landsberg testified in his deposition taken seven days prior to trial that Mrs. Gregory needed surgery. The defendant wanted to send Mrs. Gregory back to Dr. Cushman or another authorized physician for a follow-up evaluation to see if surgery was warranted. The trial court denied the motion for continuance.
By order entered May 31, 2002, the trial court awarded 45% permanent partial disability benefits to the left arm and 30% to the right arm, for a combined award of 37.5% to both arms, for a total of 150 weeks of permanent partial disability benefits.
On May 3, 2002, Mrs. Gregory filed a motion to reopen the proof to hear evidence that F M had dismissed Mrs. Gregory from her job because she could not perform her job within Dr. Landsberg's restrictions, which was later withdrawn by agreement of the parties.
The trial court further provided that the defendant would pay 30 of those 150 weeks of benefits (20%) as attorney's fees in a commuted lump sum. The trial court also ordered 19 weeks of accrued benefits to be paid to Mrs. Gregory in a lump sum. The trial court ordered that the remaining 101 weeks of benefits be paid in bi-weekly payments equivalent to $353.13 per week.
ANALYSIS
Our review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of correctness, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. § 50-6-225(e)(2). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial courts in workers' compensation cases. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). Conclusions of law are reviewed de novo without any presumption of correctness. Ivey v. Trans Global Gas Oil, 3 S.W.3d 441, 446 (Tenn. 1999).
Where the trial judge has seen and heard witnesses, especially where issues of credibility and weight of oral testimony are involved, on review considerable deference must still be accorded to those circumstances. Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315 (Tenn. 1987).
When the medical testimony is presented by deposition, as it was in this case, this Court is able to make its own independent assessment of the medical proof to determine where the preponderance of the evidence lies. Cooper v. Insurance Co. of North America, 884 S.W.2d 446, 451 (Tenn. 1994).
I. Whether the trial court erred in not continuing the trial of this case
The granting or denial of a motion for a continuance lies in the sound discretion of the court. The ruling on the motion will not be disturbed unless the record clearly shows abuse of discretion and prejudice to the party seeking a continuance. Blake v. Plus Mark, Inc., 952 S.W.2d 413, 415 (Tenn. 1997).
Counsel for defendant sought to postpone the trial to have Mrs. Gregory re-evaluated by Dr. Cushman or other authorized treating physician after Dr. Landsberg had testified shortly before trial that she needed carpal tunnel surgery. The trial court found that there were conflicting medical opinions as to whether carpal tunnel surgery was necessary in this case. The trial court noted that even though Dr. Cushman did not think surgery was warranted, he did assign Mrs. Gregory permanent restrictions. The trial court has the discretion to accept the opinion of one medical expert over another medical expert. Kellerman v. Food Lion, Inc., 929 S.W.2d 333 (Tenn. 1996); Johnson v. Midwesco, Inc., 801 S.W.2d 804, 806 (Tenn. 1990).
Dr. Cushman was deposed after Dr. Landsberg.
We find no abuse of discretion on the part of the trial court in denying the motion for continuance and refusing to postpone the trial. We find no prejudice to the appellant. This issue is without merit.
II. Whether the trial court erred in its determination of permanent vocational disability
The extent of vocational disability is a question of fact to be determined from all of the evidence, including lay and expert testimony. Tenn. Code Ann. § 50-6-241(c); Worthington v. Modine Manufacturing Co., 798 S.W.2d 232, 234 (Tenn. 1990). The assessment of this disability is based on all pertinent factors, including lay and expert testimony, the employee's age, education, skills and training, local job opportunities, and capacity to work at the types of employment available in his disabled condition. Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 678 (Tenn. 1991) Vocational disability results when "the employee's ability to earn wages in any form of employment that would have been available to him in an uninjured condition is diminished by an injury." Walker v. Saturn Corp., 986 S.W.2d 204, 208 (Tenn. 1998)
Dr. Landsberg assigned a 5% anatomical impairment rating to each upper extremity. Dr. Cushman did not assign an impairment rating, but conceded his opinion might change if she later had a positive EMG study and continued symptoms. However, both physicians assigned her permanent restrictions, which can be sufficient to support a finding of permanent vocational disability even absent an anatomical impairment rating. See Walker v. Saturn Corp., 986 S.W.2d 204. Dr. Cushman restricted her from the type of work that caused her condition at FM Furniture. Dr. Landsberg assigned permanent restrictions against repetitive gripping, squeezing, pounding, and using vibratory tools in addition to a lifting restriction for the left arm because of her elbow condition.
Her job activities at the time of her injury involved repeated pushing, pulling, twisting, and power gripping.
Mrs. Gregory was 32 years old at the time of trial and had only completed the eighth grade, although she later passed the GED exam. Other than a single secretarial class, she did not have any vocational training, and had done "mostly factory work" during her work life. While Mrs. Gregory continued to work at FM at the time of trial, it is clear she was doing so outside of her permanent restrictions. Mrs. Gregory testified that her injuries and permanent restrictions would prevent her from performing most of her prior jobs. Both she and her husband testified as to her difficulties with household chores since her injury. The trial court found that she was a credible witness.
The employee's own assessment of her physical condition and resulting disabilities is competent testimony and cannot be disregarded. Tom Still Transfer Co. v. Way, 482 S.W.2d 775, 777 (Tenn. 1972).
After reviewing the record, we find that the evidence does not preponderate against the trial court's finding as to permanent partial disability.
III. Whether the trial court erred is to the manner of payment of the non-commuted permanent partial disability payment
The appellant argues that the non-commuted portion of the award should be paid at the rate of $237.77 per week for 150 weeks. The trial court ordered payments of $353.13 per week for a period of 101 weeks. We find no abuse of discretion on the part of the trial court regarding the method of payment of benefits.
CONCLUSION
The judgment of the trial court is affirmed. Costs are taxed to the appellant.
JUDGMENT
This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference.
Whereupon, it appears to the Court that the Memorandum Opinion of the Panel should be accepted and approved; and
It is, therefore, ordered that the Panel's findings of fact and conclusions of law are adopted and affirmed, and the decision of the Panel is made the judgment of the Court.
Costs will be paid by the appellant, Safety National Casualty Corporation, for which execution may issue if necessary.
IT IS SO ORDERED.
PER CURIAM