Lang v. Nissan North America, Inc.

• Decision Date: 16 August 2005
• Parties: Frederick J. LANG v. NISSAN NORTH AMERICA, INC.
• Court: Tennessee Supreme Court

Page 564

170 S.W.3d 564

Frederick J. LANG v. NISSAN NORTH AMERICA, INC.

Supreme Court of Tennessee, at Nashville.

June 8, 2005 Session.

August 16, 2005.

Appeal from the Chancery Court, Rutherford County, No. 02-4756WC, Robert E. Corlew, III, Chancellor.

COPYRIGHT MATERIAL OMITTED

Andrée Sophia Blumstein, Nashville, Tennessee (on appeal to the Supreme Court), and Van French and Larry G. Trail, Murfreesboro, Tennessee (at trial and on appeal to the Special Workers' Compensation Appeals Panel), for the appellant Nissan North America, Inc.

Branch H. Henard, III, Nashville, Tennessee (on appeal to the Supreme Court), and Mark A. Baugh, Nashville, Tennessee (at trial and on appeal to the Special Workers' Compensation Appeals Panel), for the appellee Frederick J. Lang.

Terry L. Hill, Nashville, Tennessee (on appeal to the Supreme Court), for amicus curiae the National Federation of Independent Business Legal Foundation.

OPINION

FRANK F. DROWOTA, III, C.J., delivered the opinion of the court, in which E. RILEY ANDERSON, JANICE M. HOLDER, and WILLIAM M. BARKER, J.J., joined. ADOLPHO A. BIRCH, JR., J., did not participate.

In this case, an employee suffered work-related binaural hearing loss which has resulted in a 22% to 26% permanent medical impairment rating. The employee has missed no work as a result of this impairment. Focusing on the employee's continued ability to work, the trial court awarded the employee 9% of 150 weeks for loss of hearing as a scheduled member. On appeal, the Special Workers' Compensation Appeals Panel increased the employee's award to 45% of 150 weeks. Based on our independent review of the preponderance of the evidence, see Tenn.Code Ann. § 50-6-225(e)(2) (1999), we conclude that the trial court improperly discounted the extent of both the anatomical impairment and the vocational disability suffered by the employee. In our view, the evidence preponderates against the trial court's award of 9% disability benefits for loss of hearing and in favor of the Panel's 45% award; we therefore adopt the Panel's modification of the trial court's award and affirm the trial court's award of benefits to the employee as so modified. However, in the course of explaining its decision, the Panel referred to the employee's "loss of his ability to enjoy normal, everyday activities." We vacate the Panel's decision insofar as the Panel may have recognized the loss of enjoyment of life, or hedonic damages, as a basis for the recovery of workers' compensation benefits. For the purpose of establishing anatomical or vocational disability in workers' compensation cases, it is appropriate to consider how a work-related injury affects an employee's capacity to engage in normal, everyday activities; however, we hold that Tennessee workers' compensation law does not recognize hedonic damages—damages for the loss of enjoyment of life—as a basis for the recovery of benefits.

I. Factual and Procedural Background

The plaintiff, Frederick J. Lang, was an employee of the defendant, Nissan North America, Inc., a company which manufactures automobiles. Mr. Lang began working at Nissan's Rutherford County facility in 1985 as an assembly-line technician in the trim and chassis plant. Eventually he was promoted to line leader in trim and chassis, a position which reduced somewhat the amount of time he spent working directly on the assembly line. Over the course of Mr. Lang's lengthy employment with Nissan, his work environment has been characterized by the sound of various machinery and power tools, as well as music emanating from personal radios used by other employees.

In 1999, Mr. Lang first complained to Nissan of hearing loss, noting specifically that he could no longer hear the alarm which indicates that the assembly line has been paused. Nissan accommodated him by installing a tier light which visually indicates the assembly line's status. In 2001, at Nissan's request Mr. Lang underwent a hearing test which showed significant hearing loss. After being examined in 2002 by Wesley Moore, M.D., Nissan's plant physician, and William L. Downey, M.D., a specialist in otolaryngology¹, Mr. Lang filed this action seeking workers' compensation benefits from Nissan for permanent loss of hearing in both ears.

Two medical experts testifying via deposition rated Mr. Lang's permanent hearing loss based on audiograms and the American Medical Association Guides to the Evaluation of Permanent Impairment. Dr. Downey, whom Mr. Lang had selected from a panel of physicians offered to him by Nissan, assigned Mr. Lang a permanent binaural hearing loss rating of 26.6%. The defendant's expert, otolaryngologist Mitchell Schwaber, M.D., examined Mr. Lang in 2003 and assigned him a permanent binaural hearing loss of 22.5%. Although there is evidence in the record that Mr. Lang had some level of pre-employment hearing loss, Nissan does not contest causation in this appeal.²

At trial, various testimony was introduced regarding the effects of Mr. Lang's hearing loss. According to Mr. Lang and his wife, Cheryl D. Lang, Mr. Lang cannot hear high-pitched sounds such as alarms and ringing telephones. He has trouble understanding another person speaking when he cannot see that person face-to-face. According to Mrs. Lang, he also tends to speak too loudly. However, Mr. Lang's area manager at Nissan, Joe Shelton, testified that he has not had trouble communicating with Mr. Lang at work. Dr. Downey testified that Mr. Lang's hearing loss not only increases the need for him to face a person who is speaking but also causes him to miss about 25% of ordinary conversation. Dr. Downey and Dr. Schwaber each determined that Mr. Lang needs hearing aids to correct his hearing loss, but they also each determined that he should not wear them while working at Nissan because doing so could further damage his hearing by amplifying industrial noise.

Mr. Lang, who was forty-three years old at the time of trial, has missed no time at work as a result of his hearing loss and has continued in his position as line leader. In fact, Mr. Lang has received excellent job-performance evaluations during his longstanding employment with Nissan. He has not sought work outside of Nissan.

Mr. Lang has a high-school education, and in 1985 he received a certificate for industrial training in trim and chassis work from the Tennessee State Board for Vocational Education. His employment history prior to working for Nissan is brief. During high school, Mr. Lang worked part-time at a restaurant as a dishwasher and at a grocery store as a bagger and meat-department assistant. After graduating from high school, he spent about six years in Nashville working in various capacities for the Noland Company, holding positions as receiving clerk, counter salesperson, and assistant purchasing manager; as evidenced by his employment application to Nissan, the latter two positions required a significant amount of telephone use.

The trial court held that Mr. Lang's hearing loss was related to his work at Nissan. Having so held, the trial court awarded Mr. Lang disability benefits of 9% of 150 weeks for loss of hearing, or 13.5 weeks of benefits at his compensation rate. In making this award which fell below Mr. Lang's level of anatomical impairment, the trial court focused almost exclusively on vocational disability and the fact that Mr. Lang was able to continue working at his pre-injury position without interruption. "We find the most significant factor . . . in our determination of the percentage of vocational disability to be the Plaintiff's ability to work despite his injury." The trial court further explained: "[D]espite very high anatomical impairment ratings, which, for a trained musician or another worker largely dependent upon the skill of hearing and deciphering sounds with precision would be crucial, the Plaintiff's loss affects him more minimally." In sum, the trial court determined Mr. Lang's hearing loss "to be only a minor factor in his employability."

Mr. Lang appealed as of right to the Special Workers' Compensation Appeals Panel, contending that the evidence preponderates in favor of a larger disability award. Agreeing with Mr. Lang, the Panel increased his disability award to 45% of 150 weeks for loss of hearing, or 67.5 weeks of benefits at his compensation rate. The Panel correctly explained that Mr. Lang's "employability in the open labor market has been impacted." The Panel's opinion also included the following statement: "Even though the employee lost no time off work due to the injury and continues to work in the same or similar position, there has been a loss of his ability to enjoy normal, everyday activities generally taken for granted because hearing is required for virtually every human function."

Nissan sought discretionary review by the Supreme Court en banc, seeking reinstatement of the trial court's award and arguing that the Panel had inappropriately considered hedonic damages—the loss of enjoyment of life—as a basis for a workers' compensation award. We granted Nissan's motion for full-Court review.

II. Analysis

We granted this appeal to resolve two issues: first, whether the evidence preponderates against the trial court's award of 9% disability benefits for loss of hearing; and second, whether the Panel improperly considered hedonic damages—damages for the loss of enjoyment of life—as a basis for a workers' compensation award.

A. Preponderance of the Evidence

This is a scheduled-member compensation case. The employee seeks workers' compensation benefits for the permanent, partial loss of hearing in both ears, an injury which is governed by the statutory schedule for hearing loss provided in Tennessee Code Annotated section 50-6-207(3)(A)(ii)(r) (1999 & Supp.2004) ("For the complete permanent loss of hearing in both ears, sixty-six and two-third percent (66 2/3%) of average weekly wages during one hundred fifty (150) weeks[.]"). The schedule compensates an...