Cleek v. Wal-Mart

• Decision Date: 02 June 2000
• Docket Number: 99-02419
• Citation: 19 S.W.3d 770
• Parties: LINNIE CLEEK v.STORES, INC.IN THE SUPREME COURT OF TENNESSEE AT JACKSON
• Court: Tennessee Supreme Court

LINNIE CLEEK v WAL-MART STORES, INC.

No. W1999-02419-SC-R3-CV

IN THE SUPREME COURT OF TENNESSEE AT JACKSON

Decided June 2, 2000

Appeal from the Chancery Court for Madison County No. 53822

Hon. Joe C. Morris, Chancellor

FOR PUBLICATION

The primary issue in this workers' compensation direct appeal is whether the evidence preponderates against the trial court's findings that the appellant is 20% permanently and partially disabled. We are also asked to decide whether the appellant is entitled to an additional period of temporary total disability benefits after she made a nominal return to work but later resigned because of pain associated with her original injury. This case was argued before the Special Workers' Compensation Appeals Panel on August 13, 1999, but before an opinion was issued by the Special Panel, the case was transferred to the Supreme Court for an en banc hearing. After a thorough review of the record in this case, along with consideration of the relevant legal authorities, we hold that the evidence does preponderate against the findings of the trial court and that the evidence establishes that the appellant is permanently and totally disabled. We further hold that the appellant is entitled to an additional period of temporary total disability benefits for the period between her resignation and maximum medical improvement. We modify the judgment of the Madison County Chancery Court, and we remand this case for enforcement of our judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Madison County Chancery Court is Modified, and Case is Remanded for Enforcement of Judgment as Modified by this Court.

Donna Brown Wilkerson, Jackson, Tennessee for the appellant, Ms. Linnie Cleek.

Jeffrey P. Boyd, Jackson, Tennessee; B. Chadwick Rickman, Jackson, Tennessee, for the appellee, Wal-Mart Stores, Inc.

BARKER, J., delivered the opinion of the court, in which ANDERSON, C.J., and BIRCH, J., and HOLDER, J., joined. DROWOTA, J., not participating.

OPINION

In September of 1989, Ms. Linnie Cleek, the appellant in this case, went to work for Wal-Mart Stores in Bolivar, Tennessee as a door greeter. Nine years earlier, her husband, who provided the sole source of income for the family, was forced to retire from Colonial Bakery because of health reasons. Although the family survived for several years on disability benefits from Colonial Bakery and social security payments, the family needed additional income to make ends meet. It was at this point in 1989 that the appellant, who had no formal education beyond the tenth grade, entered the workforce for the first time in her life at the age of 64.

After working for Wal-Mart as a door greeter for eight years, the appellant suffered an injury in the course and scope of her employment on July 5, 1997. As she was assisting a customer to verify an article of purchase, she tripped over a couple of pallets left on the floor by another Wal-Mart employee, and she fell to the floor. As a result of her fall, she suffered a four-part fracture to her left shoulder as well as significant bruising throughout that area. Given her advanced age-the appellant was now 72-and the nature of the fractures, Dr. Michael Cobb, the appellant's treating physician, recommended that the appellant forego surgery.

On August 27, 1997, Dr. Cobb released the appellant to return to work with several restrictions. Although she attempted to perform her job as she had done before the accident, she had significant difficulties doing so. She could no longer do many of the duties that she was previously capable of doing, such as washing the windows and emptying the trash cans. In addition, she had trouble putting stickers on returned merchandise and frequently dropped these items when handed to her. The appellant testified that because of these difficulties, many of the customers became agitated when she had trouble assisting them.

Most importantly, though, the appellant testified that she experienced considerable pain throughout her entire left arm, even though only the shoulder was actually broken. In fact, the pain from her shoulder and arm was so intense at times that she became nauseous and could not perform the duties required by her job. When she saw Dr. Cobb again on September 25, 1997, the appellant told him that she was still experiencing great pain and that she was having trouble performing her job. Dr. Cobb suggested that she retire given her injury, age, and problems she was having at work. The next day, the appellant gave Wal-Mart notice of her intention to resign, and she formally resigned two-weeks later. On November 5, 1997, Dr. Cobb completely released the appellant after determining that she had reached maximum medical improvement.

At trial, the court admitted into evidence the deposition testimony of two doctors who examined the appellant and who assigned different impairment ratings. Dr. Cobb assigned the appellant an 8% impairment to the upper extremity, or 5% to the body as a whole, based upon the impaired range of motion in her arm. Dr. Joseph C. Boals, the appellant's evaluating physician, assigned the appellant a 35% impairment to the upper extremity. Although Dr. Boals admitted that he may have misapplied the AMA Guidelines in making this assessment, he stated that irrespective of the actual impairment rating, it was clear that the appellant was "almost one-armed" and that "she is pretty much crippled."

On February 23, 1999, the trial court entered its final order in which it concluded, among other things, that the appellant "has no future in the job market other than what the defendant is willing to give her." Based on its findings of fact, the trial court awarded the plaintiff "permanent partial disability benefits in the amount of 20% to the body as a whole," and held that the appellant "has received all of the temporary total disability benefits to which she is entitled."

The appellant sought review of the judgment arguing that the evidence preponderated against the trial court's finding that she was 20% permanently and partially disabled and that she was entitled to additional temporary total disability benefits. Oral argument was heard before the Special Workers' Compensation Appeals Panel on August 13, 1999, but the Panel transferred the case to the full Supreme Court on January 24, 2000 without rendering an opinion. Before this Court, the appellant argues that the evidence establishes that the appellant is permanently and totally disabled. We agree and also conclude that the appellant is entitled to additional temporary total disability benefits. Accordingly, for the reasons contained herein, we modify the judgment of the chancery court.

STANDARD OF APPELLATE REVIEW

The extent of vocational disability is a question of fact to be determined from all of the evidence, including lay and expert testimony. E.g., Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn. 1999); Worthington v. Modine Mfg. Co., 798 S.W.2d 232, 234 (Tenn. 1990). As such, our review of the trial court's finding in this case is de novo upon the record, "accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise." Tenn. Code Ann. 50-6-225(e)(2) (1999); Stone v. City of McMinnville, 896 S.W.2d 548, 550 (Tenn. 1995). Under this standard of review, we are required "to weigh in more depth factual findings and conclusions of trial judges in workers' compensation cases." Compare Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315, 315 (Tenn. 1987), with Anderson v. Dean Truck Line, Inc., 682 S.W.2d 900, 901-02 (Tenn. 1984) (stating that under the former material evidence standard of review, this Court was required to accept the findings of fact of trial courts if those findings are supported by any material evidence).

Accordingly, we are no longer strictly bound by the findings of the trial court in workers' compensation cases, and we are obliged to review the record on our own to determine where the preponderance of the evidence lies. Ivey v. Trans Global Gas & Oil, 3 S.W.3d 441, 446 (Tenn. 1999); Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). Although deference still must be given to the trial judge when issues of credibility and weight of oral testimony are involved, Seals v. England/Corsair Upholstery Mfg. Co., 984 S.W.2d 912, 915 (Tenn. 1999); Jones v. Hartford Accident & Indem. Co., 811 S.W.2d 516 (Tenn. 1991), this Court is able to make its own independent assessment of the medical proof when the medical testimony is presented by deposition. Landers v. Fireman's Fund Ins. Co., 775 S.W.2d 355, 356 (Tenn. 1989); Henson v. City of Lawrenceburg, 851 S.W.2d 809, 812 (Tenn. 1993).

EXTENT OF VOCATIONAL DISABILITY

The appellant first argues that the preponderance of the evidence established that she is permanently and totally disabled. Any award of permanent total disability must be in compliance with the statutory definition of total disability contained in Tennessee Code Annotated section 50-6-207(4). See Prost v. City of Clarksville, Police Dept., 688 S.W.2d 425, 427 (Tenn. 1985). The statute defines "permanent total disability" as follows:

When an injury not specifically provided for in this chapter as amended, totally incapacitates the employee from working at an occupation which brings him an income, such employee shall be considered "totally disabled," and for such disability compensation shall be paid as provided in subdivision (4)(A) . . . .

Tenn. Code Ann. 50-6-207(4)(B) (1999).

As the statute and our case law make clear, the legal definition of permanent total disability does not carry the same meaning as permanent and total medical disability. Rather, any inquiry as to whether an employee is permanently and totally disabled from a legal perspective must "focus on the employee's ability to return to gainful employment." Davis v. Reagan, 951 S.W.2d 766, 767 (Tenn. 1997). Accordi...