Heather Lynn Key v. American Insurance Company

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann._ 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found the plaintiff to be 22 _ percent anatomically impaired, and applied a multiplier of 2 _ times in awarding benefits based upon a 56.25 vocational percent impairment. The evidence preponderates against a finding of 22 _ percent anatomical impairment. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Criminal Court Affirmed as Modified WILLIAM H. INMAN, SR. J., in which ADOLPHO A. BIRCH, JR., J. and HOWELL N. PEOPLES, SP. J., joined. William R. Pigue and A. Allen Smith, III, Nashville, Tennessee, for the appellant, American Insurance Company. William Joseph Butler and E. Guy Holliman, Lafayette, Tennessee, for the appellee, Heather Lynn Key. MEMORANDUM OPINION Background On March 18, 1999, the plaintiff filed a complaint for workers' compensation benefits resulting from alleged injuries to her right shoulder, arm and neck. On May 19, 1999, she filed another complaint for workers' compensation benefits resulting from alleged injuries to her left shoulder and arm. The defendant responded that the plaintiff continued to work, that her injuries were minimal, and that she suffered no significant anatomical impairment or vocational disability. The cases were consolidated for trial. The trial court found that the plaintiff sustained a 22 _ percent anatomical impairment resulting in a 56.25 percent vocational impairment and awarded benefits accordingly. The defendant appeals, insisting that the award is excessive because the findings are not supported by credible proof. Our review is de novo on the record with the presumption that the judgment is correct unless the evidence otherwise preponderates. Rule 13 (d) T.R.A.P. The Evidence The plaintiff is a 29 year old mother of two children, ages seven and nine. She is a high school graduate with some college work and vocational courses in computer science and various hobbies. She began working for Bosch Braking Systems in April 1995, doing assembly work. She resigned her job on March 7, 2 because "I didn't feel I was getting better." It is significant that she missed no time from work, and she testified that at the time of trial nine months after she left work her condition had improved. She was then under no medical treatment, and she "had no interest in working." She testified that she had difficulty in performing household chores, driving her car and other activities which required physical exertion. Her husband corroborated her testimony concerning her imposed work limitations. Plaintiff testified that she first began having difficulties in October of 1998 when she began experiencing discomfort in her right shoulder and arm. She was treated by Dr. Michael Bernui, whose notes indicate that he initially treated her left shoulder and arm. At a follow-up visit, she complained of discomfort in her right shoulder and arm, and Dr. Bernui treated her conservatively. She next saw Dr. Bernui several months later, shortly before filing suit, complaining of persistent pain in her right arm and shoulder. He continued to prescribe physical therapy and the use of anti- inflammatory drugs, but determined that a nerve conduction study would be useful in evaluating the plaintiff's condition. He referred her to a neurologist, Dr. Alan Bachrach, for a complete EMG study. The study was performed of the right upper extremity and revealed no evidence of abnormality. Dr. Bernui continued to treat the plaintiff on a weekly basis. With no objective evidence of physical dysfunction, he ordered an x-ray of her right shoulder which revealed no abnormality. He thereupon referred the plaintiff to an orthopedic specialist, Dr. Thomas Gautsch. -2-