Patterson v. Premier Medical Group6/3/2002
other than at the shoulder, 400 weeks; both hands, 400 weeks; both legs, 400 weeks; one arm and the other hand, 400 weeks; one hand and one foot, 400 weeks; one leg and one hand, 400 weeks; one arm and one leg, 400 weeks; one arm and one foot, 400 weeks; both eyes, both arms at the shoulder, use of the whole body, use of mental faculties, 400 weeks.
If the injury causes a permanent loss of part but not all of the use of a scheduled member, and if such loss is not specifically provided for in the schedule, benefits are computed by applying the percentage of loss to the total loss benefit contained in the schedule. Where a covered employee suffers permanent disability to both arms, it is proper to determine the claimant's disability to each arm separately, then average those two disabilities to arrive at a single disability for the scheduled injury of "loss of two arms other than at the shoulder," then apply that percentage to 400 weeks. Tenn. Code Ann. § 50-6-207(3)(A)(ii)(w); see also Drennon v. General Electric Company, 897 S.W.2d 243, 247 (Tenn. 1994).
Where a worker's only injury is to a scheduled member, he may receive only the amount of compensation provided by the schedule for his permanent disability. Genesco, Inc. v. Creamer, 584 S.W.2d 191, 193-94 (Tenn. 1979). Such injuries are exclusively controlled by the statutory schedule. McIlvain v. Russell Stover Candies, Inc., 996 S.W.2d 179, 185 (Tenn. 1999). Although the claimant complains of pain in the neck and shoulder, the medical proof is that his permanent work related injury is to both arms.
When an injury, not otherwise specifically provided for in the Workers' Compensation Act, totally incapacitates a covered employee from working at an occupation which produces an income, such employee is considered totally disabled. Tenn. Code Ann. § 50-6-207(4)(B). In the case of permanent total disability, a covered injured employee will receive, as disability benefits, sixty-six and two-thirds percent of the wages received at the time of the injury, subject to the maximum weekly benefit and minimum weekly benefit, but not beyond the employee's sixty-fifth birthday, provided, that with respect to disabilities resulting from injuries which occur after age sixty, regardless of the age of the employee, permanent total disability benefits are payable for a period of 260 weeks. Such compensation payments are reduced by the amount of any old age insurance benefit payments attributable to employer contributions which the employee may receive under the Social Security Act, U.S.C., title 42, subchapter II, as amended. Tenn. Code Ann. § 50-6-207(4)(A)(i).
Once the causation and permanency of an injury have been established by expert testimony, the trial judge may consider many pertinent factors, including age, job skills, education, training, duration of disability, and job opportunities for the disabled, in addition to anatomic impairment, for the purpose of evaluating the extent of a claimant's permanent disability. McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995). The trial court found from a consideration of the appropriate factors that the claimant was permanently and totally disabled. The evidence does not otherwise preponderate. The award of benefits to age 65, however, overlooks the rule that an injury to both arms is "otherwise specifically provided for in the Act," thus exclusively controlled by the schedule which provides for a maximum of 400 weeks.
For the above reasons, the judgment of the trial court is modified by limiting the payment of permanent disability benefits to a period of 400 weeks, but otherwise affirmed. Costs on appeal are taxed one-half to the appellants and one-half to the appell
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