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Gammons v. Peterbilt Motors Co.2/20/2001
Mailed - January 17, 2001
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 trial court found the plaintiff had sustained a permanent partial disability to his right arm of sixty percent, which would entitle him to one-hundred twenty weeks of partial permanent disability. The defendant argues the trial judge erred in setting the amount of the award because the treating physician fixed the medical impairment rating at six percent, and the independent medical examiner fixed the rate at thirty- four percent; the trial judge used neither of these ratings to reach the amount awarded. We affirm the judgment of the trial court.
Tenn. Code Ann. § 50-6-225(e) (1999) Appeal as of Right; Judgment of the Criminal Court is Affirmed.
John K. Byers, Sr. J., delivered the opinion of the court, in which Frank F. Drowota, III, J. and Tom E. Gray, Sp. J., joined.
OPINION
The trial court found the plaintiff had sustained a permanent partial disability to his right arm of sixty percent, which would entitle him to one-hundred twenty weeks of partial permanent disability. The defendant argues the trial judge erred in setting the amount of the award because the treating physician fixed the medical impairment rating at six percent, and the independent medical examiner fixed the rate at thirty-four percent; the trial judge used neither of these ratings to reach the amount awarded.
Biography and Facts
At the time of trial, the plaintiff was twenty-seven years of age and had a twelfth grade education. He had worked for several construction companies.
In October of 1996 the plaintiff sustained an injury to his right shoulder. He did not report this injury. Surgery was performed on the plaintiff's shoulder, and he returned to work for the defendant.
On June 23, 1997, the plaintiff's right shoulder was injured again in the course of his employment with the defendant.
Medical Evidence
As a result of the June injury the plaintiff was seen and treated by Dr. Stephen M. Neely, M.D., an orthopaedic surgeon. He was also examined by Dr. C. R. Dyer, M.D., an orthopaedic surgeon, on December 12, 1998.
Dr. Neely first treated the plaintiff by limiting his activities, by rehabilitation therapy and with medication. Dr. Neely continued to treat the plaintiff and eventually recommended surgery because the plaintiff had experienced no improvement in his condition. The plaintiff's surgery was performed on February 20, 1998. Dr. Neely rated the plaintiff's medical impairment at six percent to the right arm.
Dr. Dyer reviewed the plaintiff's records and examined the plaintiff; he found the plaintiff suffered a thirty-four percent medical impairment rating to the right upper extremity (arm).
Dr. Neely's restrictions upon the plaintiff's return to work for the defendant were that he not lift more than fifty pounds, that he engage in no repetitive overhead motion, that he limit the use of the "huck gun" (a work tool) to less than one-third of the total work time and forbade use of it in an outstretched or overhead position.
Discussion
We note at the outset that a worker does not have to show vocational disability to recover for an injury to a scheduled member. Duncan v. Boeing Tenn. Inc., 825 S.W.2d 416 (Tenn. 1992). Further, the limiting of an award for whole body injuries does not apply to scheduled member injurie
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