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Barnett v. S&R;of Tennessee6/11/2002
The employee or claimant, Mary Barnett, is 37 years old with a general education diploma and some vocational training. She began working in September 1997 as a mold operator for the employer, S&R;of Tennessee. Her job required repetitive use of both hands. She gradually developed pain and numbness in the right arm and pain in her left shoulder. She began seeing an orthopedic surgeon, John Janovich, in June 1998. During the same month, she was fired from her job with the employer for excessive absenteeism. Without any positive objective tests, Dr. Janovich diagnosed left carpal tunnel syndrome, which he corrected surgically.
In April 1999, Dr. Janovich began treating the claimant's right arm for carpal tunnel syndrome. Right surgical release was done the following July. Following surgery, she was diagnosed with a ruptured cervical disc. The disc injury is not part of this case. At the trial, Dr. Janovich opined, unequivocally and to a reasonable degree of certainty that the claimant's bilateral carpal tunnel syndrome was causally related to her work for the employer and that she would retain a permanent medical impairment of 5 percent to each arm. The claimant is presently employed as an assistant manager for Dollar General, but is medically restricted from repetitive use of the wrists.
The employer had the claimant examined and evaluated by Mark Steven Harriman. Dr. Harriman opined the claimant's problems were probably related to her cervical disc condition, not carpal tunnel syndrome.
Upon the above summarized evidence, the trial court awarded, inter alia, permanent partial disability benefits based on 15 percent to each arm. Appellate review of findings of fact is de novo upon the record of the trial court accompanied by a presumption of correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. ยง 50-6-225(e)(2).
This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). 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 that 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, 178 (Tenn. 1999). The appellate tribunal, however, is as well situated to gauge the weight, worth and significance of deposition testimony as the trial judge. Walker v. Saturn Corp., 986 S.W.2d 204, 207 (Tenn. 1998). The extent of an injured worker's vocational disability is a question of fact. Story v. Legion Ins. Co., 3 S.W.3d 450, 456 (Tenn. 1999).
The appellant's first argument is that the claimant's injuries did not arise out of and in the course of employment. An accidental injury arises out of one's employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury, and occurs in the course of one's employment if it occurs while an employee is performing a duty he was employed to do. Fink v. Caudle, 856 S.W.2d 952, 958 (Tenn. 1993). Where a condition develops gradually over a period of time resulting in a definite, work-connected, unexpected, fortuitous injury, it is compensable as an injury by accident. Brown Shoe Co. v. Reed, 209 Tenn. 106, 350 S.W.2d 65 (1961). In the present case, the required causal connection was established by
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