Seals v. England/Corsair Upholstery Mfg. Co., Inc.

• Decision Date: 11 January 1999
• Citation: 984 S.W.2d 912
• Parties: Linda S. SEALS, Plaintiff/Appellee, v. ENGLAND/CORSAIR UPHOLSTERY MANUFACTURING COMPANY, INC., Defendant/Appellant, Dina Tobin, Director of the Division of Workers' Compensation, Tennessee Department of Labor, Second Injury Fund, Defendant/Appellee.
• Court: Tennessee Supreme Court

Page 912

984 S.W.2d 912

Linda S. SEALS, Plaintiff/Appellee, v. ENGLAND/CORSAIR UPHOLSTERY MANUFACTURING COMPANY, INC. Defendant/Appellant Dina Tobin, Director of the Division of Workers' Compensation, Tennessee Department of Labor Second Injury Fund, Defendant/Appellee.

Supreme Court of Tennessee.

Jan. 11, 1999.

David H. Dunaway, LaFollette, for Appellee Seals.

John Knox Walkup, Attorney General and Reporter, Sandra E. Keith, Assistant Attorney General, Nashville, for Appellee Second Injury Fund.

J. Steven Collins, John A. Willis, Knoxville, for Appellant.

OPINION

BIRCH, J.

In this workers' compensation action, the employee, Linda S. Seals, filed two separate claims: one for a March 1993 back injury and a second for a July 1993 hand injury and chronic depression. Although not formally consolidated by the trial court, these claims were tried together. Regarding the first claim, the trial court awarded the employee benefits for a 25 percent permanent partial disability to the body as a whole as a result of the back injury. Regarding the second claim, the trial court found that the employee was permanently and totally disabled from the combination of the back injury, the hand injury, and resulting chronio depression. No distinct rating was provided for the hand injury alone. Pursuant to Tenn.Code Ann. § 50-6-208(b) (Supp.1997), the trial court apportioned the permanent total disability award 75 percent to the employer, England/Corsair Upholstery Manufacturing Company, Inc., and 25 percent to the Second Injury Fund.

This Court consolidated the employee's two claims for review. The Special Workers' Compensation Appeals Panel, upon reference for findings of fact and conclusions of law pursuant to Tenn.Code Ann. § 50-6-225(e) (Supp.1997), found that the evidence preponderated against the trial court's findings of permanent psychiatric injury and permanent total disability. The panel found instead that the employee sustained permanent partial disabilities of 12.5 percent as a result of the back injury and 40 percent as a result of the subsequent hand injury. In addition, the panel disallowed certain discretionary costs awarded by the trial court.

We granted the employee's motion for full-court review. For the reasons stated below, we find that the evidence does not preponderate against the trial court's findings. We remand the case, however, for further proceedings on the apportionment of liability between the employer and the Second Injury Fund in accordance with this Court's decision in Bomely v. Mid-America Corp., 970 S.W.2d 929 (Tenn.1998). We affirm, as modified, the trial court's order relating to the discretionary costs.

I

The employee is forty-eight years old and began working for the employer in 1985. She sustained a work-related back injury on March 7, 1993, but she was able to return to work on March 26, 1993, to a less strenuous position. She sustained another work-related injury to her left hand and wrist on July 27, 1993, and she underwent surgery for this injury on November 19, 1993. When she returned to work on January 4, 1994, she was assigned to answer the telephone, to file, and to perform minimal data entry tasks in the office. Her status was changed to part-time on May 1, 1995, and she subsequently resigned from her job on September 18, 1995. She filed suit for workers' compensation benefits for all of her injuries. At trial, she testified that she resigned due to constant pain in her back and left arm.

In the fall of 1995, the employee sought treatment for depression at Cherokee Health Systems. She ended this treatment after two or three visits, however, because she did not like her doctor. The employee had not received any other treatment for depression as of the time of the December 1996 trial.

Two orthopedic surgeons testified regarding the extent of the employee's physical impairment. The treating physician, Harold E. Cates, M.D., testified that the employee's back injury resulted in a 5 percent permanent impairment with a ten-pound lifting restriction. He also testified that her hand/wrist injury resulted in a 10 percent permanent impairment, ¹ yielding a combined rating for both injuries of a 15 percent permanent impairment. The evaluating physician, William E. Kennedy, M.D., testified that the employee sustained a 4 percent permanent impairment to the body as a whole as a result of her 1993 back injury. He did not rate the impairment, if any, that the employee sustained from the hand/wrist injury.

Regarding the employee's depression, two psychiatrists testified concerning the permanency of her impairment. The first, Jerry B. Lemler, M.D., testified on behalf of the employee. Lemler testified that during his evaluation of the employee on December 4, 1995, he concluded that she was suffering from major depression, single episode with psychotic features, caused by her back and hand/wrist injuries. Due to the untreated nature of her mental illness, Lemler testified that the employee's depression was becoming chronic and would therefore not respond effectively to anti-depressant medications. Furthermore, he testified that it was unlikely that the employee would be able to engage in any meaningful introspective psychotherapy due to her limited intellectual ability. Finally, he testified that she would be unable to concentrate sufficiently on an assigned work task for eight hours each day. Thus, Lemler opined that the employee suffered a 50 percent permanent impairment due to chronic depression.

The second psychiatrist, Bruce Quinton Green, M.D., evaluated the employee's mental impairment on behalf of the employer. Green testified by deposition that psychological testing and his personal examination of the employee resulted in his conclusion that she is suffering from a major depressive episode from which she "absolutely should recover" with appropriate medical and rehabilitative treatment. ² Green elaborated that there is a very high statistical likelihood that the employee's depression is not permanent.

Finally, three experts testified in regard to the employee's vocational capacity. Kelly Lenz, a physical therapist, testified in reference to a "functional capacity evaluation" report she prepared on the employee. Lenz's report states that her findings, when coupled with the lifting restrictions imposed by Cates, meant that the employee would be most suitable for sedentary work, defined as occasional lifting of ten pounds or less, no frequent lifting, and no significant walking or carrying.

Norman Hankins, Ed.D., also testified as a vocational expert. Hankins determined that the employee's reading, spelling, and arithmetic skills are at a grade-school level and that her IQ is in the "borderline" range. Thus, he opined that even without the depression, the employee is 100 percent vocationally disabled based on her physical and educational limitations. ³

The last vocational expert, Ed Smith, testified on behalf of the employer. Smith determined that the employee has transferable skills in the areas of customer service, clerical, telephonic, cashier, and reception. While he opined that the employee is not totally disabled, Smith agreed with Lenz that the employee is restricted to sedentary employment.

The trial court concluded that the employee was permanently and totally disabled as a result of her physical and mental injuries. The back injury and resulting depression were rated as a 25 percent permanent partial disability to the body as a whole, ⁴ and the employer was ordered to pay benefits on this basis. No distinct rating was given, however, to the hand/wrist injury and consequential worsening of the employee's depression which resulted in her total disability. The trial court awarded permanent total disability benefits to be paid until the employee reaches age sixty-five. ⁵ As noted previously, the trial court apportioned the permanent total disability benefits 75 percent to the employer and 25 percent to the Second Injury Fund. The trial court also granted the employee's motion for discretionary costs.

II

In Collins v. Howmet Corp., 970 S.W.2d 941, 943 (Tenn.1998), we summarized the standard of review and other legal principles that apply to the pending case:

In workers' compensation cases, the standard of review in this Court on issues of fact is 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); Spencer v. Towson Moving and Storage Inc., 922 S.W.2d 508, 509 (Tenn.1996). 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. Humphrey v.. David Witherspoon, Inc., 734 S.W.2d 315, 315 (Tenn.1987).

In reviewing the evidence, we are mindful that the permanency of a work-related injury must first be established by competent medical evidence. Harness v. CNA Ins. Co., 814 S.W.2d 733, 734 (Tenn.1991). Once permanency is established, the trial court may evaluate the factual question of the extent of vocational disability. See Collins v. Howmet Corp., 970 S.W.2d at 943. In determining vocational disability, the trial court may consider a myriad of factors, including such factor as the employee's education. See Tenn.Code Ann. § 50-6-241(a)(1) (Supp.1997) (listing the factors to be considered).

In this case, the trial court heard the testimony discussed above as well as the testimony of the employee and that of a representative of the employer. From our independent, de novo review of this evidence, we recognize that the trial court faced a close question as to the extent and permanency of the employee's disabilities. However, in light of the presumption of correctness given to the trial court's findings and the deference due on issues of credibility and weight to be given...