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Huff v. Savage Zinc6/21/2002
stimony in this case. The expert testimony further shows the fracture did not cause the disease, nor so far as we can discern from the evidence, did it advance the disease or make it worse. Even if it did, the medical evidence does not show any effect upon the disease other than in the foot, if at all.
At most, the medical evidence indicates that the disease was asymptomatic before the injury. The symptoms of pain which the plaintiff now complains of are limited to the foot according to the expert testimony.
We draw from the medical testimony in this case that the basic tenor of the medical experts is that the plaintiff now must use caution because he knows he had a non work related disease which makes him more susceptible to fractures. The medical evidence is speculative as to whether he could have worked a lifetime without a fracture, but we draw from this that the same level of susceptibility exists whether at work or other pursuits in life. The medical evidence only shows the plaintiff cannot continue to do the work he was previously doing because it required him to climb stairs and carry heavy loads. As we construe this testimony this type work makes him more susceptible to fracture because of the underlying disease.
If there is an injury to a scheduled member that extends beyond the scheduled member to the body as a whole, then recovery is not limited to a scheduled member and may be properly awarded to the body as a whole. Wells v. Sentry Ins. Co., 834 S.W.2d 935 (Tenn. 1992).
As a general rule, permanent partial benefits to a "scheduled member," are exclusively controlled by the schedule established by the General Assembly and may not be apportioned to the body as a whole unless the injury affected a particular combination of members not statutorily provided for or when scheduled members cause a permanent injury to an unscheduled member of the body not provided for. Thompson v. Leon Russel Enterprises, 834 S.W.2d 927 (Tenn. 1992). The foot or "lower extremity" is provided for in Tenn. Code Ann. ยง 50-6-207(3)(A)(ii)(n).
There is no evidence in this case to show the fracture sustained by the plaintiff or the aggravation of the underlying bone disease, if any, extended beyond the foot of the plaintiff.
The testimony of the plaintiff that he had pain in his back is not shown by any medical evidence to have existed or to be permanent if it did. The claim is, therefore, not supported in the record. Thompson, supra.
We find the injury in this case is limited to the plaintiff's lower leg. We therefore reverse the judgment of the trial court and remand the case thereto for further proceedings.
The appellant's issues III and IV are settled by this opinion and need not be addressed.
The cost of this appeal is taxed to the plaintiff, Charles Thomas Huff.
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 adopted and affirmed, and the decision of the Panel is made the judgment of the Court.
Costs will be paid by the plaintiff, Charles Thomas Huff, for which execution may issue if necessary.
IT IS SO ORDERED.
PER CURIAM
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