Tammy Bowman v. Fleetwood Homes of Tennessee Inc.,

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of facts and conclusions of law. The employer appeals the judgment of the trial court awarding the employee 5% permanent partial disability for a right shoulder injury, even though the parties had stipulated prior to trial that this injury was not at issue. The employer further appeals the trial court's ruling combining a 2% vocational disability rating to the arm, which is a scheduled member, with the 5% anatomical impairment rating for the shoulder, which is to the body as a whole, then multiplying both by the 2.5 maximum pursuant to Tennessee Code Annotated _ 5-6-241(a)(1). We hold that the trial court erred in awarding permanent partial disability for the right shoulder because both parties had stipulated that it was not at issue and because no expert testimony supported a finding of permanency. Accordingly, we reverse the judgment of the trial court awarding workers' compensation benefits based upon an injury to the employee's shoulder. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Criminal Court Reversed. JAMES L. WEATHERFORD, SR.J., in which JANICE M. HOLDER, J., and JOE C. LOSER, SP.J., joined. John R. Lewis, Nashville, Tennessee, for the appellants, Fleetwood Homes of Tennessee Inc., and Kemper Insurance Companies. B. Keith Williams, Lebanon, Tennessee, for the appellee, Tammy Bowman. MEMORANDUM OPINION At the time of trial, Ms. Tammy Bowman, the employee-appellee, was a 34 year old divorced mother of two children. She has an 11th grade education and her primary work experience has been in manual labor. She has worked for Fleetwood Homes of Tennessee Inc. ("Fleetwood"), the employer-appellant, since 1992. Ms. Bowman first noticed a problem with her right shoulder and arm in March of 2, while working for Fleetwood. The majority of Ms. Bowman's work day was spent continuously gripping a caulking gun with her right hand, mopping walls, and cleaning overhead mirrors with her right arm in an overhead position. On May 11, 2, Ms. Bowman was referred to Dr. Jeffrey E. Hazlewood, whose examination revealed some tenderness in her anterior shoulder region. However, he found that Ms. Bowman had normal range of motion in her shoulder with no pain, no shoulder impingement, and no swelling or redness. Dr. Hazlewood concluded that the neurological exam "showed no abnormalities with normal strength, sensation, and reflexes." Dr. Hazlewood's ultimate diagnosis was right wrist and shoulder tendonitis for which he recommended physical therapy. After further complaints of pain in her shoulder, Dr. Hazlewood performed an EMG nerve test on June 14, 2, that returned normal results. Dr. Hazlewood testified in deposition that Ms. Bowman did not have any permanent impairment pursuant to the AMA Guides. Therefore, he did not assign any anatomical ratings for the shoulder or wrist. Dr. Hazlewood testified that Ms. Bowman had legitimate pain in her shoulder, but that she was able to perform at work and home with no restrictions. On November 14, 2, Ms. Bowman saw Dr. Francisca Lytle for an independent medical evaluation at the request of Ms. Bowman's counsel. Dr. Lytle assigned a 1% impairment rating to the right extremity based on decreased grip strength attributed to wrist tendonitis. Dr. Lytle attributed this injury to Ms. Bowman's repetitive use of a caulking gun while working at Fleetwood. Dr. Lytle testified that she would have recommended permanent restrictions in regards to any activity that required a gripping motion. In regard to the shoulder, Dr. Lytle performed several tests that revealed mild shoulder tendonitis that she believed Ms. Bowman incurred while working. Dr. Lytle found soreness in the shoulder, but she also found a normal range of motion and no evidence of instability. She also testified that she would recommend not working in an overhead position because that would aggravate the shoulder tendonitis. Based on her evaluation, Dr. Lytle did not believe that the injury to Ms. Bowman's shoulder was permanent. She also testified that the overhead restrictions "may actually not" be permanent. She also believed that a change in Ms. Bowman's sleeping posture would alleviate the shoulder pain. -2-