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Butterfield v. Crawford & Company6/11/2002
nefits to the body as a whole and the pre-injury employer returns the employee to employment at a wage equal to or greater than the wage the employee was receiving at the time of the injury, the maximum permanent partial disability award that the employee may receive is two and one-half times the medical impairment rating pursuant to the provisions of the American Medical Association Guides to the Evaluation of Permanent Impairment or the Manual for Orthopedic Surgeons in Evaluating Permanent Physical Impairment. Tenn. Code Ann. § 50-6-241(a)(1). Where an injured worker is entitled to receive permanent partial disability benefits to the body as a whole, and the pre-injury employer does not return the employee to employment at a wage equal to or greater than the wage the employee was receiving at the time of the injury, the maximum permanent partial disability award that the employee may receive is six times the medical impairment rating determined pursuant to the above guidelines. Tenn. Code Ann. § 50-6-241(b). Thus, the employer contends, the maximum allowable award of permanent partial disability benefits in the present case is 6 times the 5 percent impairment rating of Dr. Gulish, or 30 percent.
The claimant argues that the trial court is not so limited because the Supreme Court has held an impairment rating is not always necessary for an award of permanent disability benefits. The present case is distinguished from those so holding, in that this record contains a competent medical opinion of the extent of the claimant's medical impairment. We hold that the multipliers contained in the above section do apply in cases where the proof includes a competent medical impairment rating, subject only to statutory exceptions, where the award is to the body as a whole.
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. Tenn. Code Ann. § 50-6-241(b). The opinion of a qualified expert with respect to a claimant's clinical or physical impairment is a factor which the court will consider along with all other relevant facts and circumstances, but it is for the trial court to determine the percentage of the claimant's industrial disability. Federated Mut. Imp. and Hardware Ins. Co. v. Cameron, 220 Tenn. 636, 422 S.W.2d 427 (1967).
Because the award of permanent partial disability benefits exceeds the maximum provided by Tenn. Code Ann. § 50-6-241(b), the judgment of the trial court is vacated and the cause remanded for further consideration. On remand, the trial court should determine the extent of the claimant's permanent vocational disability without considering the impairment rating contained in Dr. Barnett's C-32 report. If the trial court finds that a multiplier of five times or greater is appropriate, the trial court shall make specific findings of fact as required by Tenn. Code Ann. § 50-6-241(b).
Costs are taxed to the appellee.
JUDGMENT
This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference;
Whereupon, it appears to the Court that the Memorandum Opinion of the Panel should be accepted and approved; and
It is, therefore, ordered that the Panel's findings of fact and conclusions of law are
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