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Hulsey v. Peterbilt Motors Co.8/17/2000
Mailed - July 17, 2000
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. § 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this case, the employer contends that the award of permanent partial disability benefits is excessive. The employee asserts that the appeal is frivolous. The panel has concluded the award should be affirmed and no damages should be awarded for a frivolous appeal.
Tenn. Code Ann. § 50-6-225(e)(3) Appeal as of Right; Judgment of the Circuit Court Affirmed
Turnbull, Sp. J., delivered the opinion of the court, in which Drowota, J., and Loser, Sp. J. joined.
MEMORANDUM OPINION
Background
The employee Claudean Hulsey, is 52 years old. She left high school during the 11th grade and has had no further school or vocational training. Her job experience is limited to occupations requiring repetitive use of her hands. She began to work for Peterbilt Motors Company in February of 1984. For the past 10 years, Hulsey worked in the "hood/box" department where she installed cloth and vinyl lining into sleeper boxes using impact air screwdrivers and power drills. Her work required forceful repetitive hand intensive activities.
In 1996, Hulsey began experiencing numbness and pain in her right arm, symptoms of carpal tunnel syndrome. She then began to be treated by Dr. Michael McHugh. In April of 1998, Dr. McHugh performed a right sided carpal tunnel release. Hulsey returned to work with restrictions from Dr. McHugh for a week or two following the surgery.
Peterbilt employees went on strike for seven months during the summer and fall of 1998 before Hulsey had a full work trial. In December of 1998, Hulsey returned to work in the "hood/box" department. She began experiencing pain and tingling in her hand again and returned to Dr. McHugh in April of 1999. Dr. McHugh diagnosed her with DeQuervains Tenosynovitis, right hand lateral column pain and possible early recurrence of right carpal tunnel syndrome.
Dr. McHugh placed permanent restrictions on Hulsey. She is to use impact tools no more than 4 hours in the course of the day, do only occasional gripping or squeezing, and only occasional strenuous pushing or pulling. Hulsey now has accommodated lighter duties but continues to experience pain in her right wrist at work. She lines sleeper boxes four hours per day and drives a tractor pulling truck hoods off the paint line for the remainder of her shift. Dr. McHugh assigned a 5% impairment to the upper right extremity. Dr. David W. Gaw, who examined Husley once in 1998, assigned a 10% impairment of the upper right extremity, and applied similar restrictions.
The trial judge found that the employee had a 40% vocational disability to the right upper extremity after crediting the impairment rating given by Dr. Gaw.
Analysis
Percentage of Disability
Our analysis begins by recognizing the applicable standard by which to review worker's compensation cases. Issues of fact are reviewed de novo upon the record of the trial court, accompanied by a presumption that the findings of the trial court are correct, unless the preponderance of the evidence is otherwise. E.g., McIlvain -v- Russell Stover Candies, Inc., 996 S.W.2d 179, 183 (Tenn. 1999) When a trial court has seen and heard witnesses, especially where issues of credibility and weight of oral testimony are involved, considerable deference must be accorded the trial court's factual findings. E.g., Collins -v- Howmet Corp., 970 S.W.2d 941, 943 (Tenn. 1998) Where medical
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