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Presley v. VF Workwear6/25/2002
The employee or claimant, Ms. Presley, is 43 years old with a twelfth grade education and no vocational or other training. She gradually developed bilateral carpal tunnel syndrome from repetitive use of her hands while working as a sewing machine operator for the employer, VF Workwear, Inc., also known as Red Kap. She was referred to Dr. Carl Hollman, who performed corrective surgery on both arms and estimated her permanent medical impairment to be 10 percent to both arms, using AMA Guides, Fourth Edition. He restricted her from any activity requiring repetitive use of the hands and arms. She has not returned to work.
She sued for workers' compensation benefits and, after a trial on the merits, the trial court awarded her, inter alia, permanent partial disability benefits based on the functional equivalent of 60 percent to both arms. The employer has appealed.
Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. ยง 50-6-225(e)(2). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies. Wingert v. Government of Sumner County, 908 S.W.2d 921, 922 (Tenn. 1995). Conclusions of law are subject to de novo review on appeal without any presumption of correctness. Nutt v. Champion Intern. Corp., 980 S.W.2d 365, 367 (Tenn. 1998). Issues of statutory construction are solely questions of law. Bryant v. Genco Stamping & Mfg. Co., 33 S.W.3d 761 (Tenn. 2000). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court which had the opportunity to observe the witnesses' demeanor and to hear the in-court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 177 (Tenn. 1999). The trial court's findings with respect to credibility and weight of the evidence may generally be inferred from the manner in which the court resolves conflicts in the testimony and decides the case. Tobitt v. Bridgestone/Firestone, Inc., 59 S.W.3d. 57, 61 (Tenn. 2001).
The employer contends the trial court erred in giving weight and value to Dr. Hollman's opinion of permanent impairment because it was based on the fourth edition, rather than the fifth edition. Use of the fifth edition would have resulted in a lower impairment rating, according to Dr. Hollman's testimony. Physicians are required by law to include in their reports an estimate of the injured worker's anatomic impairment, using the most recent edition of the American Medical Association Guides to the Evaluation of Permanent Impairment or the Manual for Orthopedic Surgeons in Evaluating Permanent Impairment. Bolton v. CNA Ins. Co., 821 S.W.2d 932, 936-37 (Tenn. 1991).
It is undisputed that the fourth edition was the most recent edition at the time Dr. Hollman made his estimate, having determined the claimant had reached maximum medical improvement. Thus the trial court did not err in considering the opinion.
The employer further contends the above award of permanent partial disability benefits is excessive. 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
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