Advo, Inc. v. Phillips

989 S.W.2d 693
CourtTennessee Supreme Court
DecidedAugust 4, 1998
StatusPublished
Cited by4 cases

This text of 989 S.W.2d 693 (Advo, Inc. v. Phillips) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Advo, Inc. v. Phillips, 989 S.W.2d 693 (Tenn. 1998).

Opinion

MEMORANDUM OPINION

MEMBERS OF PANEL

Justice JANICE M. HOLDER, Senior Justice JOHN K.BYERS, and Special Judge J. STEVEN STAFFORD.

STAFFORD, Special Judge.

OPINION

This worker’s compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tenn.Code Ann. § 50-6-225(e) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law.

Review of the findings of fact made by the trial court is de novo upon the record, 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); Stone v. City of McMinnville, 896 S.W.2d 548, 550 (Tenn.1995). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial court in a worker’s compensation ease. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn.1988). However, considerable deference must be given to the trial judge, who has seen and heard witnesses [694]*694especially where issues of credibility and weight of oral testimony are involved. Jones v. Hartford Accident and Indemnity Company, 811 S.W.2d 516 (Tenn.1991).

ISSUES

The issues presented for this Panel’s review are:

1. Is the defendant’s rotator cuff injury an injury to a scheduled member or to the body as a whole?
2. Does the defendant have the option to treat her injury as an injury to a scheduled member or an injury to the body as a whole?

For the following reasons, we find that the defendant’s rotator cuff injury is an injury to the whole body. We further find that the defendant does not possess the right to select whether her injury is to be treated as an injury to the whole body or to a scheduled member.

FACTS

The facts surrounding the defendant’s injury and its compensability are not disputed. The defendant is a 42 year old woman. She attended the twelfth grade but did not graduate from high school. She has not obtained her GED nor has she received any additional vocational training.

On March 10, 1995, the defendant tripped and fell at work hitting her left side and her left shoulder. She experienced pain in her shoulder as a result of the fall.

On March 14, 1995, she was seen by Dr. Riley Jones, a board certified orthopedic surgeon. Dr. Jones diagnosed the defendant with myofascial pain, started her treatment program with anti-inflammatories, changed her duty status to sedentary and placed her in therapy. Upon further examination, Dr. Jones ordered the defendant to undergo an MRI which revealed a tear of the supraspina-tus which is a tendon located at the top of the rotator cuff.

MEDICAL EVIDENCE

As the result of the injury, Dr. Jones performed an arthroscopy neer acromio-plasty on the defendant. In this procedure, the underside of the acromion is removed. The purpose of this procedure is to increase the space between the bone and the rotator cuff thereby allowing the muscles more freedom and eliminating any impingement. Dr. Jones also trimmed the end of the clavicie.

After the surgery, Dr. Jones was required to manipulate the defendant’s shoulder. In this procedure, the defendant was put to sleep and movement was forced on her shoulder in order to break up the scar tissue. This procedure was necessary because the defendant had a low threshold of pain.

Dr. Jones testified that the defendant suffered a 10% permanent partial disability to the upper extremity as a result of the injury. This equates to a rating of 6% to the body as a whole. He stated that the AMA Guidelines rate this injury to the upper extremity due to the lack of flexion extension and the relative value of the functional unit to the upper extremity. Dr. Jones also testified that the bone that he operated on is at the point of connection between the shoulder blade and clavicle or collar bone.

The defendant was returned to her regular duty on June 8,1995.

The defendant testified that she is still employed by the plaintiff and is earning the same amount of money that she earned before the injury. Prior to the injury, she was employed as a crew leader. She is unable to perform that job and is now employed as a quality clerk. She stated that she is right handed and that she experiences pain every day as a result of the injury.

The defendant testified she is unable to use her left arm to lift anything and that she has lost approximately 75% of the strength in her left arm. The defendant formerly enjoyed playing softball and volleyball but is unable to play either sport now. She is also unable to hang curtains, wring out a mop, or pick up her grandchild. She testified she was unable to do any job that requires her to lift above her waist.

This case was heard by the trial court on May 7, 1997. On May 8, 1997, the court entered a written judgment. The court stated in its judgment that the only issue for its determination was whether the injury suffered by the defendant was confined to a scheduled member or whether it should be [695]*695attributed to the body as a whole. The court found from the facts presented that the injury extended beyond the defendant’s arm and awarded the defendant a judgment for 15% permanent partial disability to the whole body.

On May 9, 1997, the court filed a written “Amendment to Judgment .” In this order, the court stated that:

“Since the purpose of the Act is to be viewed with an eye toward protection of the worker, it is the opinion of the court that the worker should have the option of selecting whether or not he or she wishes to be compensated on the basis of loss of a scheduled member or to the body as a whole.”

The Court then modified its judgment to award the defendant benefits of 40% permanent partial disability to the left arm.

ANALYSIS

Dr. Jones testified that the defendant suffered an injury to the rotator cuff. The bone that he operated on is at the point of connection between the shoulder blade and the clavicle or the collar bone. When describing the injury and the procedure he employed to repair the injury, he continually referred to the shoulder, acromion, supraspinatus, collar bone, and shoulder blade. In discussing the extent of the disability suffered by the defendant, Dr. Jones testified that she had suffered a 10% permanent partial disability to the upper extremity. He then translated the rating to a 6% permanent partial disability to the body as a whole. When questioned about why he gave a rating to the upper extremity he stated that:

“Well, according to the A.M.A. Guides, and I’m looking at it, all of these ratings are to the upper extremity. I will give you Figure 38, Page 43.

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Cite This Page — Counsel Stack

Bluebook (online)
989 S.W.2d 693, Counsel Stack Legal Research, https://law.counselstack.com/opinion/advo-inc-v-phillips-tenn-1998.