Wade v. Aetna Cas. and Sur. Co.

Decision Date27 July 1987
Docket NumberNo. 87-11-I,87-11-I
Citation735 S.W.2d 215
CourtTennessee Supreme Court
PartiesMargaret WADE, Plaintiff-Appellee, v. AETNA CASUALTY AND SURETY COMPANY, Defendant-Appellant. 735 S.W.2d 215

Thomas L. Reed, Jr., Reed, Rogers & Trail, Murfreesboro, for plaintiff-appellee.

William C. Moody, Michael M. Castellarin, Nashville, for defendant-appellant.

OPINION

FONES, Justice.

The issues in this workers' compensation case involve the amount of recovery due for claimant's work-related injuries.

On 19 June 1984, claimant suffered an accident while performing her duties as a nurses' assistant at the Middle Tennessee Medical Center [MTMC]. After diagnosing claimant's injury as a musculoligamentous strain of the spine, claimant's initial treating physician, Dr. Lowery, prescribed anti-inflammatory medications and flexion exercises with intermittent bed rest. Despite returning to work on 8 October 1984, claimant continued to experience pain.

On 20 December 1984, claimant visited Dr. Lowery and complained primarily of pain in her left knee, an injury which claimant related back to her work-related accident on 19 June. No longer capable of working, claimant sought the opinion of an orthopedic surgeon, Dr. O. Tom Johns, concerning her continued back and knee pain. On 5 February 1985, Dr. Johns performed surgery on claimant's left knee, but a planned myleogram on her back was foregone so as to avoid a possible allergic reaction.

Despite the apparent success of the knee operation and the lack of any objectively measurable organic deficiencies in claimant's back, she continued to complain of pain. On 16 July 1985, Dr. Johns referred claimant to the Nashville Pain and Stress Clinic for psychological evaluation concerning her laments about pain. Following a series of psychological tests, claimant was diagnosed as suffering from psychogenic pain disorder, a malady in which pain is the primary symptom and is inconsistent with organic findings, 1 with underlying depression. On 16 September 1985, claimant entered the Stress Clinic's chronic pain program, an intensive four week group treatment program designed to teach participants how to cope with their pain. Following completion of this program, claimant returned to her position at MTMC but was subsequently fired in late March of 1986.

Claimant filed suit against MTMC's workers' compensation insurance carrier on 5 April 1985 seeking recovery of benefits allegedly due because of the injuries to her back and knee. 2 After a hearing on 18 November 1986 in the Chancery Court for Rutherford County, the chancellor held that claimant successfully proved that her back and left knee injuries resulted from a work-related accident at MTMC. The chancellor held that claimant was entitled to permanent partial disability to twenty-five percent of the body as a whole, as well as twenty-three weeks of temporary total disability. Furthermore, the chancellor held that defendant was responsible for several outstanding medical expenses, including the costs of claimant's treatment at Nashville Pain and Stress Clinic.

Defendant first challenges the award of permanent partial disability to twenty-five percent of claimant's body as a whole.

Dr. Johns testified that, although he was unable to discern any permanent disability with respect to claimant's back, she retained a fifteen percent permanent partial impairment to the "left lower extremity as a whole." In awarding permanent partial disability, the chancellor stated that "I think including the fifteen percent limitation, permanent partial limitation of the knee, including that and the psychogenic pain, that she should have twenty-five percent permanent partial disability to the body as a whole."

Defendant maintains that the permanent disability to claimant's "left lower extremity as a whole" is in fact an injury to her left leg, which is a so-called "scheduled member." Defendant therefore argues that any award of permanent disability for this injury is strictly limited to the amount statutorily established for the "loss of a leg" and is not includable in an award to the "body as a whole." We agree.

In T.C.A. Sec. 50-6-207(3), which provides for awards of permanent partial disability, the legislature has specifically designated rates of recovery for permanent impairment of certain parts of the body, i.e. scheduled members. Permanent partial disabilities to areas not specifically enumerated as scheduled members are to be assessed as a percentage of the "body as a whole." T.C.A. Sec. 50-6-207(3)(F). This Court has repeatedly held that an award of permanent partial disability for an injury to a scheduled member is exclusively controlled by the rate established by the legislature for that member and is not includable in an award to "the body as a whole." Genesco v. Creamer, 584 S.W.2d 191 (Tenn.1979); Washington County Bd. of Educ. v. Hartley, 517 S.W.2d 749 (Tenn.1974); Chapman v. Clement Bros., Inc., 222 Tenn. 223, 435 S.W.2d 117 (1968); Shores v. Shores, 217 Tenn. 96, 395 S.W.2d 388 (1965).

Under T.C.A. Sec. 50-6-207(3)(A)(ii)(0), the leg is a scheduled member. Dr. Johns testified that claimant retains a fifteen percent permanent partial disability in her "left lower extremity as a whole." No attempt has been made to show that the "left lower extremity" extends any farther than the left leg. Compare Continental Ins. Co. v. Pruitt, 541 S.W.2d 594 (Tenn.1976) (injury to "left upper extremity" supported award to body as a whole where proof showed injury to extend beyond arm and into shoulder). The award for claimant's fifteen percent permanent partial disability to her "left lower extremity as a whole" must, therefore, be calculated pursuant to T.C.A. Sec. 50-6-207(3)(A)(ii)(0).

It is apparent that the chancellor believed that claimant retained some degree of permanent partial disability to her body as a whole as a result of her psychogenic pain disorder. This Court has consistently held that mental and nervous illnesses, of which psychogenic pain disorder certainly qualifies, are compensable under the workers' compensation statute when causally connected to a work-related accident. See Jose v. Equifax, 556 S.W.2d 82 (Tenn.1977) (and authorities cited therein). No challenge is presented to the chancellor's finding that claimant's psychogenic pain disorder was caused by her work-related accident.

In order to sustain an award of permanent disability for a mental illness, however, the permanency of that illness must be established by expert medical testimony. International Yarn Corp. v. Casson, 541 S.W.2d 150 (Tenn.1976); Minton v. Leonard, 219 Tenn. 642, 412 S.W.2d 886 (1967). In International Yarn, the chancellor found that the plaintiff had sustained a thirty-five percent permanent partial disability to the body as a whole as a result of a work-related accident which caused an "hysterical neurosis with conversion reactions of pain in her head, back, legs and other parts of her body and with dissociative reactions of amnesia, inability to talk and irritability and anger." International Yarn, 541 S.W.2d at 151. The only expert testimony concerning permanency, that of a psychiatrist, was described by this Court as:

equivocal and self-contradictory. At one point, he said that Miss Casson could handle "a simple kind of mill job, probably very similar to what she was doing" before the accident. However, he made a similar remark shortly afterward and prefaced it with the comment that "this is pure speculation." But immediately following he said that it was "probable" she could go back to work after this litigation is concluded. He also said that work would have therapeutic value for her.

He stated that her ability to return to work would depend upon certain hypothetical future events, such as a simple, undemanding job, an understanding supervisor, a protective husband, professional help, a sense of being believed. He questioned her ability to make use of psychiatric help. He replied affirmatively to counsel's suggestion that Miss Casson's complaint "may be with her for the rest of her life, or they may not be, depending on what the future holds." He also testified that her pain, and especially her irritability and nervousness, would interfere with her ability to work, that this would be a continuing problem, and that he would expect her to be more susceptible to hysterical reaction in the future. But, he also stated that he "couldn't answer" the question whether or not the neurosis would disappear, nor the question whether or not the accident had diminished the appellee's ability to work.

International Yarn, 541 S.W.2d at 152.

In holding that there was no material evidence to support the chancellor's award, this Court stated that the psychiatrist's testimony was "so self-contradictory and speculative that it has no probative value upon the issue of the permanency of the [plaintiff's] disability." Id.

In the present case, claimant relies upon the testimony of Dr. Bronwen Williams, a licensed clinical psychologist and staff member at the Nashville Pain and Stress Clinic, 3 to support the award of permanent partial disability for her psychogenic pain disorder. In response to questioning concerning the prognosis for claimant's return to work. Dr. Williams stated:

A. I think that if she were required to return to work and was put in a position where that was expected of her, she has the ability to do it. I think there was a lot of stress financially and otherwise placed on her that made her doubt her ability, her MMPI.

For instances, I talk about her profile. Her profile was one that we refer to them as feeling over the hill. These people have fears that at this point in their life, they're not going to be able to continue on.

And I think that if she were returned to work and continued with that, that she would have good prognosis; that if she were able to continue to keep out of going to work, that she could return to her state...

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