Sherry Lawrence v. Erin Truckways, Ltd. d/b/a Digby Truck Line, Inc., and The Travelers 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 awarded plaintiff 1% permanent vocational disability. Defendants challenge the trial court's finding of permanent impairment and the trial court's finding of 1% permanent vocational disability. We find that the evidence preponderates in favor of a finding of a compensable permanent injury. We find, however, that the evidence preponderates against an award of 1% permanent vocational disability. W e find the evidence preponderates in favor of a finding of 75% permanent partial vocational disability. We so modify the judgment of the trial court and, as modified, affirm it. Plaintiff, 41, has a tenth-grade education. Her past work history includes work as a waitress, bartender, factory worker and a truck driver. On October 3, 199, plaintiff and her husband were driving for defendant when plaintiff fell from the truck cab as she was trying to open a partially stuck passenger door. She was diagnosed with a sprain to the right upper back and right neck and admitted to the hospital for an unstable diabetic condition. She was also visited by a psychiatrist while at the hospital for depression and sleeplessness. Since her injury, plaintiff has developed chronic pain in her neck and back and eventually in her lower back. She never returned to work for the defendant but, in 1992, she began working as a bartender. She quit after ten months due to pain. Plaintiff was first treated by Dr. Gurumurthy Reddy, an orthopedic surgeon, who diagnosed a neck and upper back strain and noted muscle spasm and limitation of range of motion of the neck. He last saw her on January 31, 1991, when he diagnosed myofascial neck and upper back pain and released her to return to work on a trial basis. Plaintiff was eventually treated by Dr. Dennis Aguirre, an anesthesiologist. He diagnosed fibromyalgia in August 1993. He testified that fibromyalgia is a 2