Peace v. Easy Trucking Company2/6/2001
Submitted on Briefs - June 22, 2000
We are asked in this case to determine whether awards of permanent partial disability to the body as a whole for employees over age 60 should be calculated as a percentage of 400 weeks, with a "cap" at 260 weeks, or whether such awards should be calculated as a percentage of 260 weeks. After thorough consideration of the entire record and the relevant authorities, we hold that permanent partial disability awards are properly calculated at 400 weeks, with a "cap" at 260 weeks for employees over age 60. In addition, the defendant contends that the trial court erred in granting the plaintiff an award pursuant to Tenn. Code Ann. § 50-6-242 (1999) rather than applying the "multiplier" provision of Tenn. Code Ann. § 50-6-241(b) (1999) to limit the plaintiff's awards to six times his medical impairment rating. Because we find that Tenn. Code Ann. § 50-6-242 allows trial courts to make an award in excess of the "multiplier" provision only if the statute's requirements are supported by clear and convincing evidence, we remand the cause to the trial court so that it may document such clear and convincing evidence as may support an award in excess of the "multiplier" provision.
Tenn. Code Ann. § 50-6-225(e) Appeal by Permission; Findings of Fact and Conclusions of Law of the Workers' Compensation Special Appeals Panel Accepted; Judgment of the Trial Court Affirmed in Part and Reversed in Part; Remanded
Adolpho A. Birch, Jr., J., delivered the opinion of the court, in which E. Riley Anderson, C.J., Frank F. Drowota, III, and Janice M. Holder, JJ, joined. William M. Barker, J., not participating.
OPINION
I. Facts and Procedural History
On February 22, 1995, Ray H. Peace, the plaintiff, was working as a truck driver for Easy Trucking Company (Easy Trucking), the defendant, when he felt a "popping" in his right shoulder while lifting the hood of his truck. Immediately thereafter, Peace began to experience pain in his shoulder which intensified over time. He sought medical attention for his injury and was treated by Brian M. Covino, M.D., who diagnosed him as having a massive tear of his rotator cuff. He underwent surgery to repair the tear, received therapy for five to six months, and was then released to return to work. Covino assigned Peace a 12 percent anatomical impairment rating to the upper extremity, or 7 percent to the body as a whole, and restricted him to lifting 5 pounds with his right arm. Peace told Easy Trucking of his restrictions and was told he would be contacted about resuming employment, but he heard nothing else from the company.
At trial, Peace presented a Tennessee Department of Labor Standard Form Medical Report completed by Covino as evidence of his injury and impairment. In addition, he presented the deposition of vocational consultant Michael T. Galloway, M.S., who testified that he had interviewed and tested Peace and had determined that he could perform jobs in approximately 500 categories. Galloway, however, testified that Peace would not have reasonable access to any job opportunity locally in the absence of special accommodations by an employer, and thus he opined that Peace was permanently and totally disabled.
Easy Trucking, on the other hand, presented the testimony of vocational consultant Jane Colvin Roberson, M.S., who stated that Peace would have access to jobs in approximately 1,000 categories, including security work, parking lot work, escort driving, and rental car delivery. She did not, however, identify any such jobs as available in the area in which Peace resided. She estimated that his vocational disability was "well under 20 percent."
Page 1 2 3 4 5 6 Tennessee Employee Leasing Services
Employee Leasing Services
|