Brown v. Campbell County Bd. of Educ.

• Decision Date: 28 December 1995
• Citation: 915 S.W.2d 407,7 NDLRP 452
• Parties: 7 NDLR P 452 Alice Sue BROWN, Plaintiff-Appellee, v. CAMPBELL COUNTY BOARD OF EDUCATION, Larry Brinton, Jr., Director of the Division of Workers' Compensation, Tennessee Department of Labor, Second Injury Fund, State of Tennessee and Charles Burson, Attorney General for the State of Tennessee, Defendants-Appellants. Brenda HARLESS, Plaintiff-Appellee, v. HUNTSVILLE MANOR NURSING HOME, STATE OF TENNESSEE and Charles Burson, Attorney General for the State of Tennessee, Defendants-Appellants.
• Court: Tennessee Supreme Court

Page 407

915 S.W.2d 407

7 NDLR P 452

Alice Sue BROWN, Plaintiff-Appellee, v. CAMPBELL COUNTY BOARD OF EDUCATION, Larry Brinton, Jr.,

Director of the Division of Workers' Compensation, Tennessee

Department of Labor, Second Injury Fund, State of Tennessee

and Charles Burson, Attorney General for the State of

Tennessee, Defendants-Appellants.

Brenda HARLESS, Plaintiff-Appellee, v. HUNTSVILLE MANOR NURSING HOME, STATE OF TENNESSEE and Charles Burson, Attorney General for the State of

Tennessee, Defendants-Appellants.

Supreme Court of Tennessee at Knoxville.

Dec. 28, 1995.

Rehearing Denied Feb. 5, 1996.

Appeal from Chancery Court, Campbell County; Billy Joe White, Chancellor.

David H. Dunaway, David H. Dunaway and Associates, LaFollette, for Plaintiffs-Appellees Brown and Harless.

J. Anthony Farmer, Tennessee Trial Lawyers Association, Knoxville, for Amicus Curiae.

R. Franklin Norton and Gary G. Spangler, Knoxville, for Defendant-Appellant Huntsville Manor Nursing Home.

Charles W. Burson, Attorney General and Reporter Diane Stamey Dycus, Senior Counsel, Nashville, for all Other Defendants-Appellants.

OPINION

WHITE, Justice.

In these consolidated workers' compensation appeals, we must determine whether Tennessee Code Annotated Sections 50-6-241 and 50-6-242, which set out the methods used to determine permanent partial disability benefits, violate the equal protection provisions of the Tennessee or United States Constitutions. Additionally, at issue is whether Tennessee Code Annotated Section 50-6-241 conflicts with the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. or Section 794 of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. For the reasons explained below, we hold that Tennessee Code Annotated Sections 50-6-241 and -242 do not violate equal protection and that Section 50-6-241 does not violate the cited federal statutes.

FACTS AND BACKGROUND

I. Harless Case

Plaintiff, Brenda Harless, is a high-school graduate who has held jobs as a nurse's aid, waitress, maid, druggist's assistant, and factory worker. At the time of trial, she was thirty-four years old. On January 16, 1993, Harless injured her back lifting a patient in the course and scope of her employment as a nurse's aid for defendant employer, Huntsville Manor Nursing Home. Harless was treated by Dr. Robert Finelli, a neurosurgeon, who recommended physical therapy and a work hardening program after detecting a bulging disk. On June 14, 1993, Dr. Finelli released Harless to return to work as a nurse's aid with a lifting restriction of twenty-five pounds for four weeks, followed by a return to full and regular duty. He assessed an anatomical impairment of 2 to 3% to the whole body. After Harless was released by Dr. Finelli, Huntsville Manor offered to put her back to work at the same rate of pay she was making when she was injured. Harless did not respond to this offer because she was not feeling well enough to return to work. She did, however, attempt to work as a cashier at a convenience store, a less physically demanding job than the one she had at the nursing home, but was not able to complete a full shift due to back pain.

In April, 1994, Harless was referred by her lawyer to Dr. William Kennedy, an orthopedic surgeon. Dr. Kennedy saw Harless on one occasion and diagnosed a herniated disk. In Dr. Kennedy's view, a herniated disk is synonymous with a bulging one, the condition diagnosed by Dr. Finelli. Dr. Kennedy opined that Harless had not been physically able to work since her back injury on January 16, 1993. He recommended that she not return to "any type of work that would require lifting greater than twenty-five pounds at a time or six pounds constantly, and that she should not do any work that would require vigorous pushing or pulling." Dr. Kennedy assigned a 14% whole body anatomical impairment rating.

In addition to Doctors Finelli and Kennedy, Harless consulted with Dr. Larry Wolfe, a family practitioner. Dr. Wolfe began treating Harless on January 31, 1994, for psychiatric problems, specifically depression and anxiety. Dr. Wolfe found her "extremely disabled" on account of emotional difficulties stemming from the back injury and her resulting inability to work and support her family. Dr. Wolfe was unable to provide a numerical percentage of mental impairment or a percentage of anatomical impairment reflecting Harless's pain under the American Medical Association's Guides to the Evaluation of Permanent Impairment (4th ed. 1993) ("AMA Guides") because the AMA Guides provide no such percentages.

Two vocational experts testified as well. Dr. Norman Hankins testified that Harless was 100% vocationally disabled due to her back injury and mental condition. Dr. Craig Colvin gave Harless a 20 to 25% vocational disability rating.

II. Brown Case ¹

Alice Brown, the plaintiff in the consolidated case on appeal, was fifty years old at the time of trial. She has a high-school education and has completed some college study. For approximately ten years, Brown worked in food service for the defendant employer, Campbell County Board of Education. On October 6, 1992, while trying to open a steam table in the kitchen at the elementary school where she worked, Brown suffered injuries to her neck and shoulder. Later that month Brown was injured again when she fell on her buttocks while taking inventory in the stock room at the school.

Brown's family physician, Dr. Lee Durham, a family practitioner, opined that Brown's work-related injuries aggravated her pre-existing emotional problems of severe and chronic depression. Dr. Durham could not provide a percentage of permanent mental disability under the AMA Guides because the Guides provide no such numerical percentages. Brown could, however, be classified as having "marked impairment" under the AMA Guides due to her psychological problems. ²

Realizing that Brown's back and neck conditions needed specialty care, Dr. Durham referred her to a neurosurgeon, Dr. Eugenio Vargas. Dr. Vargas first saw Brown in December, 1992. After extensive testing, Dr. Vargas found "disk abnormalities," but felt that Brown's back and neck problems were "muscular-ligamentous" in nature and did not require surgery. Dr. Vargas found no objective indication that Brown had suffered a permanent injury as a result of the October 1992 work incidents. Consequently, he assessed no anatomical impairment, and referred Brown back to Dr. Durham for physical therapy.

Dr. William Kennedy, the same orthopedic surgeon that evaluated Harless, also evaluated Brown. Dr. Kennedy assessed an anatomical impairment rating of 21% to the whole body as a result of Brown's back and neck conditions. ³ According to Dr. Hankins, her vocational disability following the October injuries is at least 95%.

III. Trial Court's Findings

In the Harless case, the chancellor found that Harless was 86% permanently disabled. He attributed 56% of the permanent disability to the back injury and 30% to the resulting emotional condition. In the Brown case, the chancellor found 90% permanent partial disability to the whole body, with 60% (56% physical and 4% emotional) attributable to the first injury in October, 1992, and 30% (28% physical and 2% emotional) to the second injury. In both cases, the chancellor found that Tennessee Code Annotated Section 50-6-241(a)(1) and (c) was unconstitutional. Specifically, the court found Section 241(a)(1) to be

"arbitrary, capricious, illegal, and unconstitutional because it violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and unfairly discriminates between workers whose medical problems are recognized by the [AMA Guides] and those whose problems are not, such as mental trauma and chronic pain syndrome."

The court went on to declare the provision as violative of equal protection

in that it provides workers who return to the same employment with less disability than those workers who do not return to the same employment.

As to Section 241(c), the court based its finding of unconstitutionality on the unreasonable classification of workers with AMA recognized injuries and those whose injuries are not AMA recognized. Therefore, the court concluded that "this statute unfairly discriminates between workers whose medical problems are recognized by the [AMA Guides] and those whose problems are not."

Finally, the court declared Section 241(c) to be unconstitutional

because the statute requires that the multipliers established by T.C.A. Section 50-6-241(a) and T.C.A. Section 50-6-241(b) be maximum limits. The Court further finds that the ratings in the [AMA Guides] have nothing whatever to do with the inability to work. In the real world of an actual work injury, a worker with a slight impairment might be (given the nature of his occupation) completely unable to continue in his trade, while another worker might suffer a more serious injury and yet (because of the nature of his or her occupation) be able to continue working. Incorporation of the [AMA Guides] into the statutory scheme of the Tennessee Workers' Compensation Act in spite of these truths is therefore arbitrary, capricious, and irrational.

In the Brown case, the chancellor also held Section 232 unconstitutional because it discriminates between educated and uneducated workers.

ANALYSIS

I. The Statutes in Question

Reduced to its essentials, Tennessee Code Annotated Section 50-6-241 ⁴ establishes maximum permanent disability awards for employees based on the medical impairment rating and multipliers selected by the legislature. The medical impairment rating must be determined in accordance with specific guides and manuals, or if not covered by those, by any "appropriate method used and accepted by the medical community." The maximum permanent partial disability award an employee may received depends on whether the employee is returned to work after injury at an equal or greater wage than at...