Opinion
No. M2002-01775-WC-R3-CV.
Filed May 5, 2003.
Direct Appeal from the Chancery Court for Trousdale County; No. 6502; Charles K. Smith, Chancellor.
Affirmed.
D. Brett Burrow and Joel W. Brasfield, Nashville, Tennessee, for the appellants, Francisco Jauer Gutierrez, Individually and as Owner of Old El Paso Construction, and Realm National Insurance Company.
C. Tracey Parks, Gallatin, Tennessee, for the appellee, Aristeo Martinez.
John K. Byers, Sr. J., delivered the opinion of the court, in which Adolpho A. Birch, Jr., J., and Joe C. Loser, Jr., Sp. J., joined.
MEMORANDUM OPINION
The trial judge found the plaintiff sustained a 75 percent permanent partial disability to the body as a whole as a result of an injury which he suffered in the course of his employment with the defendant. The defendant contends the trial court erred in not finding the plaintiff sustained an injury to a scheduled member rather than to the body as a whole. We affirm the judgment of the trial court.
The facts in this case and the resolution thereof are not complex. On July 13, 1999, the plaintiff, who worked as a carpenter, was driving a nail. The nail flew into the plaintiff's left eye and caused extensive damage.
The only medical evidence in this case was given by Dr, Ming Wang, an ophthalmologist and cornea expert, who was Director of the vision clinic at Vanderbilt Hospital. Dr. Wang said:
Pain is more than just an eye, but the entire right side of his forehead and the side of his head. And that is probably related to neurological damages, as well as referred pain and some persistent inflammation of the tissues around the eye, causing this pain and tearing.
Dr. Wang testified the pain went beyond the eye and was disabling. Based upon this he found the plaintiff sustained a whole body injury rather than an injury limited to a scheduled member. He found the plaintiff sustained a 30 percent permanent impairment to the body as a whole.
The rule on the application of a scheduled member injury which is confined to the scheduled injury is clear. If the injury is to a scheduled member, then the recovery is limited to the schedule established by the Tennessee Legislature. Love v. National Union Fire Insurance Co., 809 S.W.2d 483 (Tenn. 1991). The rule is also clear that if an injury to a scheduled member extends beyond said member and causes injury to the body as a whole, the injured workers' right to recover is not limited by the scheduled members statute. Kerr v. Magic Chef, Inc., 793 S.W.2d 927 (Tenn. 1990).
The only medical evidence in this case shows the injury to the plaintiff extends beyond the scheduled member, i.e., left eye to the body as a whole. The evidence does not preponderate against the finding of the trial judge.
The plaintiff invites us to consider sanctioning the defendant for pursuing a frivolous appeal. We do not accept this invitation.
We affirm the judgment of the trial court. The cost of this appeal is taxed to the defendant.
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 defendant, Francisco Jauer Gutierrez and Realm National Insurance Company, for which execution may issue if necessary.