Nelson v. Wal-Mart

• Decision Date: 29 November 1999
• Docket Number: 97-00040
• Citation: 8 S.W.3d 625
• Parties: BETTY NELSON, Appellee, Vs.STORES, INC., Appellant.IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE Filed:
• Court: Tennessee Supreme Court

BETTY NELSON, Appellee,

Vs.

WAL-MART STORES, INC., Appellant

No. M1997-00040-SC-WCM-CV

IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE

Filed: November 29, 1999

MONTGOMERY CIRCUIT

HON. JAMES E. WALTON, JUDGE

For the Appellant:

Jeffrey P. Boyd, B. Chadwick Rickman, ALLEN, KOPET & BOYD, PLLC, Jackson, Tennessee

For Appellee:

Patrick Johnson, JOHNSON, SCRUGGS & BARFIELD, Nashville, Tennessee

FOR PUBLICATION

SPECIAL WORKERS' COMPENSATION APPEALS PANEL AFFIRMED AS MODIFIED.

ANDERSON, C.J.

OPINION

We granted the motion to review this workers' compensation case to clarify the circumstances under which a worker's award limited by the provisions of Tenn. Code Ann. 50-6-241 (1999)¹may exceed the statutory caps pursuant to Tenn. Code Ann. 50-6-242 (1999).² In resolving this issue, we also consider whether there was a "meaningful return to work" as contemplated by Tenn. Code Ann. 50-6-241(a)(1).

At a bench trial in the Montgomery County Circuit Court, the parties stipulated a medical impairment rating of 8% to the body as a whole. The trial court determined that there had been a meaningful return to work and concluded that Tenn. Code Ann. 50-6-241(a)(1) applied, limiting the worker's recovery to two and one half times the impairment rating, or 20%. The court further concluded, however, that Tenn. Code Ann. 50-6-242 applied and that the statutory caps should be lifted because of the worker's age, lack of education and job skills. The trial court then found that the worker had suffered a permanent partial disability of 60%.

On appeal, the Special Workers' Compensation Appeals Panel found that there had been no meaningful return to work, that Tenn. Code Ann. 50-6-241(b) applied instead, and that the worker was therefore entitled to six times the medical impairment rating, or 48%. The Panel also found that Tenn. Code Ann. 50-6-242 applied so that the award could exceed the statutory caps. The Panel then affirmed the trial court's award of 60% permanent partial disability.

We granted the motion for review of the Panel's decision and agree with the Panel's result that Tenn. Code Ann. 50-6-241(b) applies because there was no meaningful return to work; that Tenn. Code Ann. 50-6-242 applies as well to allow an award in excess of the statutory cap of six times the medical impairment rating; and that the evidence does not preponderate against the trial court's finding of 60% permanent partial disability.

The Panel, however, erred by stating that Tenn. Code Ann. 50-6-242 applies to both 50-6-241(a)(i) and 50-6-241(b) when under the plain language of the statute, it does not apply to Tenn. Code Ann. 50-6-241(a)(1) and does apply to Tenn. Code Ann. 50-6-241(b). Accordingly, we affirm the Special Workers' Compensation Appeals Panel's judgment as modified to reflect that this case is governed by Tenn. Code Ann. 50-6-241(b) rather than Tenn. Code Ann. 50-6-241(a) and that Tenn. Code Ann. 50-6-242 by its specific language applies only to Tenn. Code Ann. 50-6-241(b).

BACKGROUND

Betty Nelson, age sixty-seven, worked as a sales associate for Defendant Wal-Mart when she fell while assisting another employee move a rolled-up rug. Nelson suffered a broken hip from the fall.

The day after Nelson's fall, she was transported to the emergency room where Dr. Steve McLaughlin performed hip surgery. Dr. McLaughlin treated Nelson following the surgery, and he testified that Nelson had suffered a 20% impairment to the lower extremity. The parties agree that this converts into an impairment of 8% to the body as a whole. Dr. McLaughlin imposed restrictions upon Nelson from standing for more than forty-five minutes without taking a fifteen-minute break, from lifting over ten to fifteen pounds on a frequent basis, and from ever lifting over twenty pounds. He recommended that Nelson attempt to return to Wal-Mart and work a four-hour day with the restriction that she take "frequent breaks - setting [sic] and standing."

Following Dr. McLaughlin's recommendation, Nelson received a letter from Wal-Mart offering her a position in the fitting room answering the telephone. Nelson accepted Wal-Mart's offer and returned to work a four-hour shift on two consecutive days, April 30 and May 1, 1996. Nelson's work in the fitting room, however, required her to constantly stand up and sit down answering the phone and tending to unwanted merchandise customers would leave in the fitting room. Moreover, Nelson said that the only chair in the fitting room was a tall, unsturdy chair that had a sign taped to the wall behind it warning that no one should sit in the chair because it could fall. According to Nelson, Wal-Mart made no attempts to accommodate her need to take frequent breaks, and Nelson's attempts to fulfill the job requirements without accommodations rendered her both mentally and physically exhausted. Consequently, Nelson did not return to work at Wal-Mart.

Much later, Wal-Mart offered the position of door greeter, but the offer was made almost a year after Nelson had worked her last shift at Wal-Mart and after the present litigation was filed and preparation for trial had begun, approximately five months before trial.

Both Nelson and her daughter, Joan Cato, testified that the injury has been physically and emotionally devastating to Nelson, affecting her ability to walk and care for herself. Dr. Gordon Doss, an occupational expert who evaluated Nelson to assess her ability to work in light of her injury, testified at trial that Nelson had no reasonable employment opportunities. He further testified that at most Nelson could perform part-time sedentary work and that she had no transferable job skills.

It was undisputed at trial that Nelson had previously worked for Acme Boot Company for forty-seven years as an unskilled laborer and that she had completed only the ninth grade of high school and had not obtained her GED, nor had she any further education or specialized training.

After a bench trial, the trial court found that:

Given the evidence, it does appear that it would be reasonable to expect the Plaintiff to try the job of greeter for the Defendant. Therefore, the Court finds that under the facts of this case, T.C.A. 50-6-241(a)(1) would apply, limiting the Plaintiff's recovery to two and one-half (2 1/2) times her impairment rating.

The court went on to conclude that Tenn. Code Ann. 50-6-242 applied and that therefore, "Plaintiff's recovery is not limited to the multipliers of her impairment rating" and awarded 60% permanent partial disability.

The Special Workers' Compensation Appeals Panel found that there had been no "meaningful return to work," as contemplated by Tenn. Code Ann. 50-6-241(a)(1). The Panel therefore found that Tenn. Code Ann. 50-6-241(b) should apply, limiting the award to six times the medical impairment rating. The Panel then found that the exception for age, lack of education and job skills set out in Tenn. Code Ann. 50-6-242 also applied and that the statutory cap of six times the medical impairment of 8%, or 48%, could be exceeded. It then affirmed the trial court's award of 60% permanent partial disability.

We granted Wal-Mart's motion for review.

ANALYSIS

Standard of Review

We begin our analysis by noting the applicable standard of review. In the present case, we are concerned primarily with the construction of a statute and the application of the law to the facts, and it is well settled that we review such questions of law de novo with no presumption of correctness given the lower courts' judgments. E.g., Beare Co. v. Tennessee Dep't of Revenue, 858 S.W.2d 906, 907 (Tenn. 1993). We review questions of fact "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." Tenn. R. App. P. 13(d). The extent of vocational disability is a question of fact to be determined from all the evidence, including lay and expert testimony. E.g., Collins v. Howmet Corp., 970 S.W.2d 941, 943 (Tenn. 1998). Factors to be considered in determining the extent of vocational disability include the employee's job skills and training, education, age, extent of anatomical impairment, duration of impairment, local job opportunities, and the employee's capacity to work at the kinds of employment available to her in her disabled condition. Id. The employee's own assessment of her physical condition and resulting disability is competent testimony that should be considered as well. Id.

Trial Court's Finding of DisabilityWith the above principles in mind, we consider whether the evidence preponderates against the trial court's finding of permanent partial disability to the body as a whole. The worker, Nelson, argues that the proof establishes a permanent total disability. The test of whether an employee is permanently totally disabled requires an inquiry into whether the employee is "totally incapacitate[d] . . . from working at an occupation which brings the employee an income . . . ." Tenn. Code Ann. 50-6-207(4)(B) (1999) (emphasis added). As pointed out by Nelson, Dr. Doss testified that she has no reasonable employment opportunities. He further testified, however, that Nelson was capable of performing part-time sedentary work, which Dr. Doss defined as work which would allow Nelson to sit as needed and which would not exceed forty hours per week. As noted by the Panel, Dr. Doss's testimony that Nelson was limited to part-time sedentary work is consistent with Dr. McLaughlin's limitations that Nelson could only work a job where she would be free to take a fifteen minute break for every forty-five minutes she stood.

Neither Dr. McLaughlin nor Dr. Doss testified that Nelson would be unable to perform the job of a door greeter given these restrictions. In our view therefore, the evidence does not establish that Nelson's injury "totally incapacitates" her from "working at an occupation which brings . . . an income." Accordingly,...