McIlvain v. Russell Stover Candies, 97-00208

• Citation: 996 S.W.2d 179
• Decision Date: 19 July 1999
• Docket Number: 97-00208
• Parties: HELEN MCILVAIN, Appellee, Vs. RUSSELL STOVER CANDIES, INC. and ITT Appellants. NO. 01-IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE Filed:
• Court: Tennessee Supreme Court

HELEN MCILVAIN, Appellee,

Vs.

RUSSELL STOVER CANDIES, INC. and ITT Appellants

NO. 01-S-01-9709-CH-00208

IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE

Filed: July 19, 1999

PUTNAM CHANCERY

HON. VERNON NEAL, CHANCELLOR

For the Appellant:

William E. Halfacre, III, MADEWELL, JARED & HALFACRE, Cookeville, Tennessee

For the Appellee:

Donald G. Dickerson, Cookeville, Tennessee

FOR PUBLICATION

WORKERS' COMPENSATION SPECIAL APPEALS PANEL AFFIRMED, AS MODIFIED

ANDERSON, C.J

OPINION

We granted the motion to review this workers' compensation case to determine two issues: 1) whether the evidence preponderates against the trial court's award of 40 percent permanent partial disability to each arm; and, 2) whether the age-based classification contained in Tenn. Code Ann. 50-6-207(4)(A)(i) (1991 & Supp. 1998) applies to injured workers over age 60 who suffer injuries to scheduled members.

The Putnam County Chancery Court awarded benefits based on 400 weeks pursuant to Tenn. Code Ann. 50-6-207(3)(A)(ii)(w) (1991 & Supp. 1998), finding that the Plaintiff's carpal tunnel syndrome arose out of and in the course of her employment and resulted in a 40 percent permanent partial disability to each arm for a total award of 160 weeks. The trial court further held that the age-based classification set forth in Tenn. Code Ann. 50-6-207(4)(A)(i) pertains only to injured workers over age 60 who suffer disability to the body as a whole. The Workers' Compensation Special Appeals Panel affirmed the trial court's award but held that the age-based classification placed a 260 week cap on an award to a worker over age 60 who suffers injury to a scheduled member. After our review of the record and applicable authorities, we affirm the Panel's judgment as modified.

BACKGROUND

According to the record, Plaintiff Helen McIlvain ("McIlvain") has completed two years of high school, has obtained a GED, and has completed some vocational training courses. McIlvain's work history reflects that she has worked approximately 45 years in various jobs requiring repetitive use of her hands such as lifting, driving, and writing.

McIlvain began working for Defendant Russell Stover Candies, Inc. ("Russell Stover") on May 2, 1994. Her work involved packing candy or working in the "nut room," where she was required to pick through the nuts to remove any foreign objects. Both these jobs required McIlvain to make repetitive use of her hands and wrists.

The record reflects that McIlvain has no family history for carpal tunnel syndrome, and that she had never experienced any problems with her hands before working for Russell Stover. McIlvain testified that her symptoms first arose around July of 1996 while she was working for Russell Stover. At that time, she began to experience pain, tingling, and numbness in her wrists which has disrupted her sleep, and has interfered with her ability to work, drive a car, and perform chores such as vacuuming, washing dishes, dusting, sewing or tightening the caps on jars. As a result, McIlvain often requires her husband's assistance. At the onset of these symptoms, McIlvain was 61 years old.

McIlvain's husband testified that he has taken over the chores at home and the antique store which he owns and operates with his wife, that he has observed his wife's pain and difficulty when driving a car, and that he now mends his own clothes, has to help his wife with buttons and snaps on her clothing, and often has to sleep in a separate room since McIlvain's restlessness disturbs his sleep. He further testified that his wife never had these problems prior to her work at Russell Stover, and that he observes her condition as continually getting worse.

All medical proof in the record was entered through deposition and consists of the opinions from four different physicians. Russell Stover first sent McIlvain to Dr. Kenneth Colburn, a family practitioner. After one visit with McIlvain, Dr. Colburn diagnosed her as having a classic case of bilateral carpal tunnel syndrome and temporarily restricted McIlvain from returning to work.

After Dr. Colburn restricted McIlvain from work, Russell Stover sent McIlvain to see Dr. John Clough. According to Dr. Clough's office notes, Dr. Clough diagnosed McIlvain as suffering from tenosynovitis and possibly early carpal tunnel syndrome. Though Dr. Clough restricted McIlvain from repetitive motion, he felt that she could begin performing light duty work for Russell Stover. Consequently, McIlvain returned to work, but she requested a second opinion regarding whether she had carpal tunnel syndrome. Russell Stover referred her to Dr. Toney Hudson, a practitioner of occupational medicine and preventative health.

Dr. Hudson saw McIlvain in his office a total of eight times. Dr. Hudson testified that he ultimately diagnosed McIlvain with "bilateral carpal tunnel syndrome that had improved." According to Dr. Hudson, the cause of the carpal tunnel syndrome was "multi-factorial," stemming from McIlvain's present work, her past work, and her age. Though Dr. Hudson opined that McIlvain would retain a zero percent impairment, he restricted her from working at Russell Stover, explaining that she could still perform in the labor market if she avoids highly repetitive work.

The last deposition entered as medical proof was that of Dr. Richard Fishbein, an orthopaedic surgeon. Dr. Fishbein opined that McIlvain had a 5 percent impairment to both arms caused by carpal tunnel disease which was more probably than not caused by working at Russell Stover. Dr. Fishbein placed restrictions on McIlvain's activities, especially recommending that McIlvain avoid repetitive hand and wrist movements.

The only witness other than McIlvain and her husband to testify at trial was Bill Patterson, a private investigator Russell Stover hired to covertly videotape McIlvain. Patterson discovered that McIlvain worked part-time in an antique store. He testified that he went to the antique store and secretly videotaped McIlvain flipping through the yellow pages, dialing a push button phone, carrying items from her minivan to the store, and carrying a sign to put outside the store. Patterson testified McIlvain exhibited no difficulty in any of these activities.

McIlvain conceded that she and her husband had owned and operated the antique store for about five years and that she had not mentioned the store to either Dr. Hudson or Dr. Fishbein; however, she further testified that her work at the antique store required no repetitive hand movements and that her husband performed any work which would otherwise cause discomfort to her hands and wrists. There was also evidence that such work was not gainful employment.

Russell Stover argued before the trial court that the age-based classification contained in Tenn. Code Ann. 50-6-207(4)(A)(i) should apply to reduce McIlvain's award by offsetting Social Security retirement benefits she received. Over the sustained objection of McIlvain's counsel, Russell Stover entered into the record proof that McIlvain has been receiving Social Security retirement insurance benefits.

After the presentation of all the proof, the trial judge found that McIlvain suffered from bilateral carpal tunnel syndrome which arose out of and in the course of her employment with Russell Stover. The trial judge noted that all of the medical depositions supported this finding and stated that "there's no evidence that she did any repetitive manipulation with her hands in the antique shop that brought about this condition." The trial judge considered Dr. Fishbein's deposition testimony to be more persuasive than Dr. Hudson's testimony based on the fact that "Dr. Hudson, even though he didn't feel like that there was any medical disability, . . . did feel like . . . she should change careers."

The trial court rejected Russell Stover's argument that the age-based classification contained in Tenn. Code Ann. 50-6-207(4)(A)(i) should apply to reduce McIlvain's award by offsetting Social Security retirement benefits she received, reasoning that our holding in Vogel v. Wells Fargo Guard Serv., 937 S.W.2d 856 (Tenn. 1996), only extended the age-based classification to permanent partial disability awards to the body as a whole but not to scheduled members. Accordingly, the trial court held that -207(4)(A)(i) was inapplicable to the present case and awarded 40 percent vocational disability to each arm, based on 400 weeks, entitling McIlvain to 160 weeks of benefits at the rate of $196.69 per week. The applicable workers' compensation rate resulted in McIlvain receiving a judgment of $31,470.40 for permanent partial disability benefits.

The Workers' Compensation Special Appeals Panel held that the evidence did not preponderate against the trial court's finding of disability. Rejecting Russell Stover's argument that under Vogel, McIlvain's recovery should be limited to 40 percent of 260 weeks, and noting that in this case, the award of 160 weeks did not exceed -207(4)(A)(i)'s cap of 260 weeks, the Panel held that "disability benefits are to be based on the schedule contained in Tenn. Code Ann. section 50-6-207(3)(A)(ii), but are subject to the maximum contained in Tenn. Code Ann. section 50-6-207(4)(A)(i)."

We granted Russell Stover's motion for review.

ANALYSIS

Percentage of DisabilityWe begin our analysis by noting the applicable standard by which to review workers' compensation cases. Issues of fact are reviewed de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. 50-6-225(e)(2) (1991 & Supp. 1998). When a trial court has seen and heard witnesses, especially where issues of credibility and weight of oral testimony are involved, considerable deference must be accorded to the trial court's factual findings. E.g., Collins v. Howmet Corp., 970 S.W.2d 941, 943 (Tenn. 1998). However, where the...