U. S. Pipe & Foundry Co. v. Caraway

546 S.W.2d 215, 1977 Tenn. LEXIS 516
CourtTennessee Supreme Court
DecidedFebruary 7, 1977
StatusPublished
Cited by12 cases

This text of 546 S.W.2d 215 (U. S. Pipe & Foundry Co. v. Caraway) 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
U. S. Pipe & Foundry Co. v. Caraway, 546 S.W.2d 215, 1977 Tenn. LEXIS 516 (Tenn. 1977).

Opinion

OPINION

HARBISON, Justice.

In this workmen’s compensation case, the employee was found by the Chancellor to be totally and permanently disabled as the combined result of an industrial injury sustained on March 4, 1974 and a pre-existing congenital condition in his lower abdomen which had been the subject of repeated surgical procedures for hernia repair. The award was apportioned between the employer and The Second Injury Fund. Both the employer and the Custodian of The Second Injury Fund have appealed, raising separate issues.

The employee had worked for appellant U. S. Pipe & Foundry Company, and its predecessor, since about 1950. He has limited formal education, and is barely literate. He had operated an automatic pipe machine for eighteen or nineteen years prior to the accident which occurred on March 4, 1974. On that date his right hand became caught in the machinery when he was attempting to remove broken pieces of pipe therefrom.

There can be no question from an examination of the medical evidence in the record that the injury to the right hand and wrist of appellee was severe and painful. Initial surgical procedures were required, and thereafter a number of attempts were made to relieve intense pain in the hand, wrist and forearm by neurosurgery and injections of anesthetics. Dr. Thomas W. Currey, an orthopedic specialist, attended the appellee and saw him at regular intervals from the date of the accident through May 9, 1975, a period of some fourteen months. He thereafter saw appellee in 1976 and hospitalized him from February 16 through March 5, when efforts were made to relieve the appellee’s severe and chronic pain through nerve blocks or injections of anesthetics in his neck and shoulder. Dr. Currey had originally expressed the opinion that appellee would retain thirty percent permanent partial disability to the right arm, but after his last examination of ap-pellee on March 18, 1976 he felt that appel-lee retained forty-five percent permanent impairment to the arm. On the date of this physician’s last examination, appellee continued to have loss of strength in his grip and a marked tremor in his hand, as well as severe and persistent pain. The doctor stated that he did not believe that appellee could resume the performance of physical labor with the degree and extent of pain which had been manifested, and he knew of no further medical or surgical procedures to recommend for alleviation of the condition. He testified positively that appellee could not use his arm in any heavy physical labor.

Because of the persistent severe pain in his hand and right index finger, appellant independently consulted Dr. George M. Stevens of Oak Ridge, Tennessee, who attempted a surgical procedure to permit a greater range of motion in the injured finger. Dr. Stevens was of the opinion that appellee retained seventy-five percent permanent partial disability to the right index finger, or twenty percent disability to the hand. He did not attempt to evaluate any [217]*217injury to the wrist or any other neurological problems associated with the injury, but confined his treatment to the index finger.

The appellee himself testified as to the very limited use which he could make of his right hand and arm and, of course, he was seen and observed by the Chancellor. After consideration of all of the evidence, both medical and lay, the Chancellor awarded appellee eighty percent permanent partial disability to the right arm, together with temporary total disability benefits and medical expenses.

The employer has filed a single assignment of error, to the effect that there is no material evidence to support any award based on a greater disability than that shown in the expert medical testimony. The employer insists that the Chancellor should have limited the award to forty-five percent permanent partial disability of the right arm, since this was the maximum disability rating given by any of the medical witnesses based upon the March 4, 1974 industrial accident.

It is the insistence of the employer that in the case of a scheduled injury, the trial court must make an award in accordance with the schedule contained in T.C.A. § 50-1007(c). It insists that when there is partial loss of use of a scheduled member, the award is measured by “the extent of injury” to the particular member, as specified in the statute. It is the insistence of the employer that loss of income or earning capacity or “industrial disability” are not to be considered, and that the trial court must be guided solely and alone by the ratings given by expert medical witnesses.

We are unable to accept this contention of the employer, and do not find it to be supported either by statutory language or by the reported cases. It is true that in many of the reported decisions, awards for scheduled injuries have been based entirely upon expert testimony, and disability ratings have been frequently fixed within the range of estimates of medical witnesses. We do not find, either in the statute or in the cases, a mandatory requirement that the trial judge fix permanent partial loss of use of a scheduled member solely with reference to expert testimony.

When, as in the present case, there are differing evaluations given by expert witnesses, and when the trial judge receives lay testimony and has the opportunity to see and examine the injured claimant, in our opinion he must perform essentially the same judicial function as when he evaluates permanent partial disability to the body as a whole. That is, he must take into account all of the testimony before him. Permanency of course, must be established in these cases, as in all others, by expert medical testimony except in the most obvious eases, such as the amputation of a member. The determination of “the extent of injury”, as phrased in the statute, or the extent of permanent partial loss of use of a scheduled member is to be determined in the same manner and by essentially the same criteria as any other case of permanent partial disability. It is true, of course, that since 1963 loss of earning capacity and wage differentials are no longer the basic criteria for determining permanent partial disability in the case of unscheduled injuries, any more than they are criteria in the case of injury to scheduled members.

The employer recognizes that in the case of Pulaski Rubber Co. v. Rolin, 481 S.W.2d 369 (Tenn.1972), this Court, in a case of scheduled injury, sustained an award of permanent partial disability in excess of the disability rating given by medical experts. Appellant disagrees with that decision, and contends that it represents an aberration or a departure from previously decided eases. We do not so consider it, and find numerous cases in which awards greater than those given by examining physicians were sustained for injuries to scheduled members. See, e.g., Eaton Corp. v. Quillen, 527 S.W.2d 74 (Tenn.1975); Davis Blasting Co. v. Roberts, 517 S.W.2d 5 (Tenn.1974); Lambert Bros. v. Dishner, 212 Tenn. 697, 372 S.W.2d 166 (1963).

It is clear from an examination of the record in this case that the employee has sustained a severe and permanent inju[218]

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Cite This Page — Counsel Stack

Bluebook (online)
546 S.W.2d 215, 1977 Tenn. LEXIS 516, Counsel Stack Legal Research, https://law.counselstack.com/opinion/u-s-pipe-foundry-co-v-caraway-tenn-1977.