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Suerth v. Red Kap Industries Inc.3/10/1999
MODIFIED and AFFIRMED.
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. § 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and Conclusions of law.
Plaintiff, Charline Suerth, has perfected this appeal from the action of the trial court in awarding her 7 ½% permanent partial disability benefits to the body as a whole from her employer, Red Kap Industries, Inc.
Plaintiff sustained a work-related injury during October 1995 to her right shoulder. The orthopedic surgeon who treated her testified by deposition and stated she had a 3% medical impairment to the body as a whole as a result of a small ruptured rotator cuff tear and adhesive capsulitis. Surgery was performed and she made a real good recovery and returned to work at a wage equal to or in excess of wages paid to her prior to the accident. Her return to work was subject to restrictions of not lifting over ten pounds and no overhead work so her elbow would remain below her shoulder height.
The trial court found the provisions of T.C.A. § 50-6-241(a)(1) controlled the determination of the award of permanent disability and capped the award at 2 ½ times the medical impairment of 3%.
Plaintiff concedes this application of the statute was proper but contends the trial court was in error in failing to find that the employee met three out of the four conditions set forth in T.C.A. § 50-6-242.
Review of the case on appeal is de novo on the record accompanied by a presumption of the correctness of the findings of fact unless the preponderance of the evidence is otherwise. T.C.A. § 50-6-225(e)(2). However, de novo review does not carry a presumption of correctness to a trial court's Conclusion of law but is confined to factual findings. Union Carbide v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).
The statute in question allows additional benefits "in appropriate cases where permanent medical impairment is found and the employee is eligible to receive the maximum disability award under § 50-6-241(a)(2) or (b)." In such cases the court must find by clear and convincing evidence at least three of the following four items:
(1) The employee lacks a high school diploma or general equivalency diploma or the employee cannot read or write on a grade eight (8) level; (2) The employee is age fifty-five (55) or older; (3) The employee has no reasonably transferable job skills from prior vocational background and training; and (4) The employee has no reasonable employment opportunities available locally considering the employee's permanent medical condition.
The record indicates plaintiff was 63 years of age and had completed the eighth grade. She did not have any vocational training but in the past she had worked in a bakery, as a cashier and a general factory worker. At the time of the accident and at the trial below, she was a sewing machine operator.
Two vocational consultants testified in person before the trial court. Witness Rodney Caldwell testified plaintiff did not have any skills transferable to any other type of work except work she had performed in the past. Witness Mike Galloway testified plaintiff had skills transferable only within the industry she was working and that there were jobs outside the industry she could perform. These would be kitchen worker, housekeeper, hostess, laundry worker, cashier, parking lot attendant, etc.
Thus, it is clear from the evidence plaintiff qualifies under the first two conditions as she is over 55 years of age and only has an eighth grade
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