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Barnett v. S&R;of Tennessee6/11/2002
the testimony of the claimant and the unequivocal testimony of the treating physician.
We find no merit in the employer's contentions that the treating physician's opinion was not supported by any objective evidence or was contrary to the opinion of Dr. Harriman. When the medical testimony differs, the trial court must choose which view to believe. In doing so, the court is allowed, among other things, to consider the qualifications of the experts, the circumstances of their examination, the information available to them, and the evaluation of the importance of that information by other experts. Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn. 1991). Moreover, it is within the discretion of the trial judge to conclude that the opinion of certain experts should be accepted over that of other experts and that it contains the more probable explanation. Hinson v. Wal-Mart Stores, Inc., 654 S.W.2d 675, 676-7 (Tenn. 1983). The first issue is resolved in favor of the appellee.
The employer's next and final argument is that the claimant is not permanently disabled because she is able to work. When an injured employee's partial disability is adjudged to be permanent, the employee is entitled to benefits based on a percentage of disability rather than the amount the employee is able to earn in her partially disabled condition. Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452 (Tenn. 1988). The second issue is also resolved in favor of the appellee.
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. ยง 50-6-207(3)(A)(ii)(w); see also Drennon v. General Electric Company, 897 S.W.2d 243, 247 (Tenn. 1994). We therefore modify the award to one based on 15 percent to both arms.
As modified, the judgment of the trial court is affirmed. Costs are taxed to the appellant.
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 on appeal are taxed to the Appellant, S&R;of Tennessee, for which execution may issue if necessary.
IT IS SO ORDERED.
PER CURIAM
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