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Massengill v. Liberty Mutual Insurance Co.8/11/2000
Mailed - July 6, 2000
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The appellant-employer appealed the trial court's ruling awarding appellee- employee 75 percent permanent disability benefits to his right arm. On appeal, appellant argues the award should have been fixed to the body as a whole since the injury was mainly to the employee's right shoulder. Judgment is modified to fix the award at 12 percent disability to the body as a whole as an injury to an extremity or shoulder is not a scheduled member.
Tenn. Code Ann. § 50-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Modified.
THAYER, Sp. J., delivered the opinion of the court, in which ANDERSON, C. J., and BYERS, Sr. J., joined.
OPINION
Facts
The employee, Joe Massengill, Sr., was 47 years of age and had completed the 9th grade. He was employed as a general laborer by Ideal Masonry on May 27, 1997, when he was injured as he slipped and fell while getting out of the bed of a truck. He said his body twisted as he fell to the ground. He did not return to work as his employer could not accommodate his physical restriction of light duty work. He was out of work for some period of time but at the time of the trial he was employed as a security guard working a forty hour week at a rate of pay less than what he earned at Ideal Masonry. His medical treatment was anti-inflammatory drugs and physical therapy. In 1994 he had a prior injury to his right shoulder but it had apparently healed without any difficulty.
In describing his injury to the trial court, he testified as follows:
Q. Where is your pain located?
A. A. About right - - - around my - - - it's burning in my shoulder and going down my right arm.
Q. Okay. You're indicating back on the rear of your shoulder?
A. That's right, yes.
Q. Is that where your pain is generally located?
A. It's in the same spot, right in - -
Q. I see. Right upon your shoulder, the - -
A. About the middle of - -
Q. - - -what's called the scapula, right behind - -
A. About middle of the shoulder blade. (page 28, line 16 to page 29, line 6)
Dr. Randall Robbins, an orthopedic surgeon, testified by deposition and stated he treated plaintiff for his injury and he found tenderness over his shoulder; that his diagnosis was an injury to the muscles surrounding the medial area of the scapula. He did not give any medical impairment but did place him on medium physical demand level of work due to his inability to use his arm in lifting.
Dr. Geron Brown, also an orthopedic surgeon, testified by deposition and stated he examined plaintiff almost a year after the accident and that he reviewed certain medical records. He found plaintiff had a loss of abduction of the right shoulder as his ability to raise his arm out to the side of his body at the shoulder was 140-150 degrees out of a normal 180 degrees. His diagnosis was scapular and trapezius muscle strain, right shoulder. He was of the opinion he had a 2 percent medical impairment of the upper right extremity.
Issues on Appeal
Although the trial court made an oral finding that the disability should be fixed at 75 percent to the right upper extremity, the judgment reflected the award was 75 percent to the right arm. The insurance carrier, Liberty Mutual I
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