No. E1999-00256-WC-R3-CVSupreme Court of Tennessee, Special Workers’ Compensation Appeals Panel, at Knoxville.
December 5, 2000 April 26, 2000 Session
Direct Appeal from the Chancery Court for Washington County No. 31684, G. Richard Johnson, Chancellor.
Modified and Remanded.
Louis Andrew McElroy, Knoxville, Tennessee for the appellant, Frontier Health, Inc., d/b/a Woodbridge Mental Hospital
Howell H. Sherrod, Jr., Johnson City, Tennessee, for the Appellee, Hilda Light.
Peoples, H.N., Sp. J., delivered the opinion of the court, in which Barker, J., and Lafferty, Sr. J., joined.
MEMORANDUM OPINION
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 the correctness of the finding, unless the preponderance of the evidence is otherwise. T.C.A. §50-6-225(e)(2); Stone v. City of McMinnville, 896 S.W.2d 548, 550
(Tenn. 1995). 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. Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988).
At trial, the parties stipulated that: (1) Hilda Light suffered an on-the-job injury on June 21, 1997; (2) she was born on July 8, 1935 and was accordingly 61 years old on the date of the accident; (3) she had wages which would entitle her to a workers’ compensation rate of $141.16; (4) she reached maximum medical improvement on July 2, 1998; and (5) she had received disability payments totaling $14,931. Ms. Light injured her shoulder at work and eventually had surgery for a torn rotator cuff. It is undisputed that Ms. Light is entitled to an award for an injury to the body as a whole.
On appeal, Frontier does not seriously contest the application of the six (6) times multiplier to the impairment award, but maintains that the trial court erred in treating a medical impairment rating of ten percent to the upper extremity as equivalent to ten percent medical impairment to the body as a whole. The trial judge issued a bench opinion in this case. In discussing the medical testimony, he stated that Dr. Charles E. Barnes testified that Ms. Light had a medical impairment of five percent to the body, and that Dr. William Kennedy opined that she had a ten percent permanent partial physical impairment to the body as a whole as a result of the right rotator cuff injury. The trial judge awarded benefits based on ten percent impairment to the body.
Dr. William Kennedy testified, by deposition, that Ms. Light had a medical impairment of ten percent to the right upper extremity based upon the AMA Guides. He testified it would not be appropriate to convert the rating to the body as a whole and stated his opinion that the injury stopped at the ball of the humerus and did not get to the shoulder socket. He testified that the shoulder was part of the upper extremity in medical terminology. He reluctantly testified that ten percent of the upper extremity converts to six percent to the whole person under the AMA Guides. The trial court mistakenly found he testified to a ten percent impairment to the body.
The case of Advo, Inc. v. Phillips, 989 S.W.2d 693 (Tenn. 1998), also involved a rotator cuff tear and a ten percent permanent medical impairment to the upper extremity which equates to a rating of six percent to the body as a whole. The trial court had awarded forty percent disability to the arm. On appeal, this Court found that the two and one-half times cap applied, because the employee returned to work at a wage equal to or greater than the pre-injury wage, and modified the award to fifteen percent to the body as a whole (or two and one-half times the medical impairment rating of six). It was noted that prior decisions held that an upper extremity is not a scheduled member Wells v. Sentry Insurance Company, 834 S.W.2d 935 (Tenn. 1992), and that a shoulder is not a scheduled member, Continental Insurance Companies v. Pruitt, 541 S.W.2d 594 (Tenn. 1976). An injury to the shoulder or upper extremity is not an injury to a scheduled member, therefore it is to be apportioned to the body as a whole. Smith v. Empire Pencil Company, 781 S.W.2d 833 (Tenn. 1989) (citing Chapman v. Clement Brothers, Inc., 222 Tenn. 223, 435 S.W.2d 117 (1968).
Counsel for Ms. Light asserts that we should apply the multiplier of six to the ten percent impairment to the upper extremity to arrive at the award of sixty percent disability to the body as a whole. T.C.A § 50-6-207 provides:
“All other cases of permanent partial disability not above enumerated shall be apportioned to the body as a whole, which shall have a value of four hundred (400) weeks, and there shall be paid compensation to the injured employee for the proportionate loss of use of the body as a whole resulting from the injury.”
To determine the proportionate loss of use of the body as a whole, we rely on medical evidence that the ten percent medical impairment to the right upper extremity equals six percent when apportioned to the body as a whole. Using the multiplier of six times the impairment rating renders a permanent partial disability of thirty-six percent to the body as a whole.
We find that the judgment of the trial court should be modified to award Hilda Light permanent partial disability of thirty-six percent to the body as a whole. The case is remanded to the trial court. The costs of the appeal are assessed to the Appellee.