McIlvain v. Russell Stover Candies, Inc.

996 S.W.2d 179, 1999 Tenn. LEXIS 365, 1999 WL 504258
CourtTennessee Supreme Court
DecidedJuly 19, 1999
Docket01S01-9709-CH-00208
StatusPublished
Cited by35 cases

This text of 996 S.W.2d 179 (McIlvain v. Russell Stover Candies, Inc.) 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
McIlvain v. Russell Stover Candies, Inc., 996 S.W.2d 179, 1999 Tenn. LEXIS 365, 1999 WL 504258 (Tenn. 1999).

Opinion

*181 OPINION

ANDERSON, C.J.

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 Plaintiffs 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 Mcllvain (“Mcllvain”) has completed two years of high school, has obtained a GED, and has completed some vocational training courses. Mcllvain’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.

Mcllvain began working for Defendant Russell Stover Candies, Inc. (“Russell Sto-ver”) 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 Mcll-vain to make repetitive use of her hands and wrists.

The record reflects that Mcllvain has no family history for carpal tunnel syndrome, and that she had never experienced any problems with her hands before working for Russell Stover. Mcllvain 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 ear, and perform chores such as vacuuming, washing dishes, dusting, sewing or tightening the caps on jars. As a result, Mcllvain often requires her husband’s assistance. At the onset of these symptoms, Mcllvain was 61 years old.

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

After Dr. Colburn restricted Mcllvain from work, Russell Stover sent Mcllvain *182 to see Dr. John Clough. According to Dr. Clough’s office notes, Dr. Clough diagnosed Mcllvain as suffering from tenosyn-ovitis and possibly early carpal tunnel syndrome. Though Dr. Clough restricted Mcllvain from repetitive motion, he felt that she could begin performing light duty work for Russell Stover. Consequently, Mcllvain 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 Mcllvain in his office a total of eight times. Dr. Hudson testified that he ultimately diagnosed Mcllvain with “bilateral carpal tunnel syndrome that had improved.” According to Dr. Hudson, the cause of the carpal tunnel syndrome was “multi-factorial,” stemming from Mcll-vain’s present work, her past work, and her age. Though Dr. Hudson opined that Mcllvain 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 Mcllvain had a 5 percent impairment to both arms caused by carpal tunnel disease which was more probably than not caused by working at Russell Stovér. Dr. Fishbein placed restrictions on Mcllvain’s activities, especially recommending that Mcllvain avoid repetitive hand and wrist movements.

The only witness other than Mcllvain and her husband to testify at trial was Bill Patterson, a private investigator Russell Stover hired to covertly videotape Mcll-vain. Patterson discovered that Mcllvain worked part-time in an antique store. He testified that he went to the antique store and secretly videotaped Mcllvain 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 Mcllvain exhibited no difficulty in any of these activities.

Mcllvain 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 Mcll-vain’s award by offsetting Social Security retirement benefits she received. Over the sustained objection of Mcllvain’s counsel, Russell Stover entered into 'the record proof that Mcllvain has been receiving Social Security retirement insurance benefits.

After the presentation of all the proof, the trial judge found that Mcllvain suffered from bilateral carpal tunnel syndrome which arose out of and in the course of her employment with Russell Stover.

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Bluebook (online)
996 S.W.2d 179, 1999 Tenn. LEXIS 365, 1999 WL 504258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcilvain-v-russell-stover-candies-inc-tenn-1999.