# FILED January 11, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

LINDA S. SEALS, ) FOR PUBLICATION ) Plaintiff/Appellee, ) ) FILED: JANUARY 11, 1999 v. ) ) ENGLAND/CORSAIR UPHOLSTERY ) CLAIBORNE COUNTY MANUFACTURING COMPANY, INC., ) ) Defendant/Appellant, ) HON. BILLY JOE WHITE, JUDGE ) DINA TOBIN, DIRECTOR OF ) THE DIVISION OF WORKERS’ ) NO. 03-S-01-9704-CH-00044 COMPENSATION, TENNESSEE ) DEPARTMENT OF LABOR, ) SECOND INJURY FUND, ) ) Defendant/Appellee. )

For Appellee Seals : For Appellant : DAVID H. DUNAWAY J. STEVEN COLLINS LaFollette, TN JOHN A. WILLIS Knoxville, TN For Appellee Second Injury Fund : JOHN KNOX WALKUP Attorney General and Reporter SANDRA E. KEITH Assistant Attorney General Nashville, TN

O P I N I O N

JUDGMENT OF TRIAL COURT AFFIRMED AS MODIFIED AND REMANDED BIRCH, J.2 Inthis workers’ compensation action, the employee, Linda S. Seals, filed two separate claims: one for a M arch 1993 back injury and a se cond for a July 1993 hand injury and chronic depression. Althoughnot formally consolidated by the trial court, these claims were tried together. Regarding the first claim, the trial court awarded the employee benefits for a 25 perce nt permanent partial disability to the body as a whole as a result of the back injury. Regarding the second claim, the trial court found t hat the employee was permanently and totally disabled from the combination of the back injury, the hand injury, and resulting chronic depression. No distinct rating was provided for the hand injuryalone. Pursuant to Tenn. Code Ann. § 50-6-208(b) (Supp. 1997), the trial court apportioned the permanent total disability award 75 percent to the employer, England/ Corsai r Upholstery Manufacturin g Comp any, Inc., and 25 percent to the Second Injury Fund.

This C o urt consolidated the employee’s two claims for review. The Special Workers ’ Co mpensation Appeals Panel, upon reference for findings of fact and conclusions of law pursuant to Tenn. Code Ann. § 50-6-225(e) (Supp. 1997), found that the evidence preponderated against the tria l court’s findings of permanent psychiatric injury and permanent total disability. The panel found instead that the employee sustained permanent partial disabilities of 12.5 percent as a result of the back injury and 40 percent as a result of the subsequent hand injury. In addition, the panel disallowed certain discretionary costs awarded by the trial court.

We granted the employee’s motion for full-court review. For the reasons stated belo w, we find that the evidence does not3

preponderate against the trial court’s findings. We rem and the case, however, for further proceedings on the ap port ionment of liabilitybetween the employ er and the Second Injury Fund in accordance with this Court’s decision in B omel y v. Mid-America Corp. , 970 S.W.2d 929 (Tenn. 1998). We affirm, as mo dified, the trial court’s order relating to the discretionary costs.

I
The employee is forty-eight years old and began working for the employer in 1985. She sustained a work-related back injury on March 7, 1993, but she was able to return to work on March 26, 1993, to a less strenuous position. She sustained another workrelated injury to her left hand and wrist on July 27, 1993, and she underwent surgery for this injury on November 19, 1993. When she returned to work on January 4, 1994, she was assigned to answer the telephone, to file, and to perform minimal data entry tasks in the office. Her status was changed to part-time on May 1, 1995, and she subsequentlyresigned from her job on September 18, 1995. She filed sui t for workers’ compensation benefits for all of her injuries. At trial, she testified that she resigned due to constant pain in her back and left arm.

In th e fall of 1995, the employee sought treatment f o r depressionat Cherokee Health Systems. She en ded this treatment afte r two or three visits, however, because she did not like h e r doctor. The employee had not received any other treatment for depression as of the time of the December 1996 trial.1 Cates rated the employee’s hand/wrist injury as a 16 percent

permanent impairment to her arm which translates to a 10 percent permanent impairment to the body as a whole. 4 Two orthopedic surgeons testified regarding the extent of the employee’s physical impairment. The treating physician, Harold E. Cates, M.D., testified that the employee’s back injury resulted in a 5 percent permanent impairment with a ten-pound lifting restriction. He also testified that her hand/wrist injury resulted in a 10 percent permanent impai rment, 1 yielding a combined rating for both injuries of a 15 percent permanent impairment. The evaluating physician, WilliamE. Kennedy, M.D., testified that the employee sustained a 4 percent permanent impairment to the body as a whole as a result of her 1993 back injury. He did not rate the impairment, if any, that the employee sustained from the hand/wrist injury.
Regarding the employee’s depression, two psychiatrists testified concerning the permanency of her impairment. The first, JerryB. Lemler, M.D., testified on behalf of the employee. Lemler testified that during his evaluation of the employee on December 4, 1995, he concl uded t hat she was suffering from major depression, single episode with psychotic features, caused by her back and hand/wrist injuries. Due to the untreated nature of her mental illness, Lemler testified that the emplo yee’s depression was becoming chronic and would therefore not respond effectively to anti-depressant medications. Furthermore, he testified that it was unlikelythat the employee would be able to engage in any meaningful introspective psychotherapy due to her limited intellectual ability. Finally, he testified that she would be unable to con centrate sufficiently on an assigned work task for eight hours each day. Thus, Lemler opined that the employee2 Green’s testimony supports Lemler’s conclusion that the

employee’s depression resulted in large part from her work-related physical injuries. 5 suffered a 50 percent permanent impairment due to chronic depression.

The second psychiatrist, Bruce Quinton Green, M.D., evaluated the employee’s mental impairment on behalf of the employer. Green testified by deposition that psychological testing and his personal examination of the employee re sulted in his conclusionthat she is suffering from a major depr essive episode fromwhich she “absolutely should recover” with appropriate medical and rehabilitative treatment. 2 G reen elaborated that there is a veryhigh statistical likelihood that the employee’s depression is not permanent.

Finally , t hree experts testified in regard to the employee’s vocational capacity. KellyLenz, a physical therapist, testified in reference to a “functional capacity evaluation” report she prepared on the employee. Lenz’s report states that her findings, when coupled with the lifting restrictions imposed by Cates, meant that the employee would be most suitable for sedentary work, defined as occasional lifting of ten pounds or less, no frequent lifting, and no significant walking or carrying.

NormanHankins, E d.D., also testified as a vocational expert. Hankins determined that the employee’s reading, spelling, and arithmetic skills are at a grade-school level and that her IQ is i n the “borderline” range. Thus, he opined that even witho u t3 Hankins mistakenly believed that Cates had placed a two-pound

lifting restriction on both of the employee’s arms, when in fact, the orthopedist gave a two-pound restriction to the left arm and a ten-pound restriction to the right arm. When asked how his assessment would be altered by the ten-pound restriction, Hankins admitted that there would be “a few” sedentary jobs that the employee could perform.

4 The trial court based this disabili ty rat ing upon a finding that the employee had a 5 percent medical impairmen t due to the back injury and a 5 percent medical impairment due to the depression. Using the 2.5 statutory multiplier, the trial court found a 25 percent permanent partial disability.

5 Inits brief, the employer argued that the trial court erred in awarding more than the statutory maximum of 400 weeks of benefits. We recently decided this issue in Bomely wherein we held that benefits for permanent total disability are not subject to the 400 week cap. Bomely , 970 S.W.2d at 932. Thus, th e trial court did not err. 6 the depression, the employee is 100 percent vocationally disabled based on her physical and educational limitations. 3

The last vocational expert, Ed Smith, testified on behalf of the employer. Smith determined that the employee has transferable skills in the areas of customer service, clerical, telephonic, cashier, and reception. While he opined that t he employee is not totally disabled, Smith agreed with Lenz that the employee is restricted to sedentary employment.

The trial court concluded tha t the employee was permanentlyand totally disabled as a result of her physical and mental injuries. The back injury and res ulting depression were rated as a 25 percent permanent partial disability to the body as
a whole, 4 and the employer was ordered t o pay benefits on this basis. No distinct rating was given, however, to the hand/wrist injuryand c o nsequential worsening of the employee’s depression whichresulted in her total disability. The trial court awarded permanent total disability benefits to be paid until the employee
r eaches age sixty-five. 5 As noted previously, the trial cour t7

apportioned the permanent total disability benefits 75 percent to the employer and 25 percent to the Second Injury Fund. The trial court also granted the employee’s motion for discretionary costs.

II

In Collins v. Howmet Corp. , 970 S.W.2d 941, 943 (Tenn. 1998), we summarized the standard of review and other legal principles that apply to the pending case:

Inworkers' compensation cases, the standard of review in this Court onissues of f a ct is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. § 50-6-225(e)(2); Spencer v. Towson Moving and Storage Inc. , 922 S.W.2d 508, 509 (Tenn. 1996). When a trial court has seen and heard witnesses, especiallywhere issues of credibilityand weight of oral testimonyare involved, considerable deference must be accorded to the trial court's factual findings. Humphreyv. David Witherspoon, Inc. , 734 S.W.2d 315, 315 (Tenn. 1987).

Inreviewing the evidence, we are mindful that the permanencyof a work-related injury must first be established by competent medical evidence. Harness v. CNA Ins. Co. , 814 S.W.2d 733, 734 (Tenn. 1991). Once permanency is established, the trial court may evaluate the factual question of the extent of vocational disability. See Collins v. Howmet Corp. , 970 S.W.2d at 943. In determining vocational disability, the trial court may consider a myria d of factors, including such factor as the employee’s educat ion. See Tenn. Code Ann. § 50-6-241(a)(1) (Supp. 1997) (listing the factors to be considered).8 Inthis case, the trial court heard the testimony discussed above as well as the testimony of the employee and that of a representative of the employer. From our independent, de novo reviewof this evidence, we recognize that the trial court faced a close question as to the extent and permanency of the employee’s disabilities. However, in light of the presumption of correctness givento the trial court’s findings and the deference due on issues of credibility and weight to be given to oral testimony, we
con clude that the evidence does not preponderate against t h e findings of the trial court. We thus affirm the findings regarding the ex tent of the employee’s injuries and the permanent total disabled condition that now exists due to her depression.

III

The employer first argues that the trial court abused its discretionby not granting the employer’s motion to consolidate the employ ee’s two workers’ compensation claims. Essentially, the employer maintains that if the claims had been c onsolidated, the employee would only have been entitled to one award of benefits for permanent total disability; thus, no separate award of benefits for the March 1993 back injury would have been appropriate.

We c anno t agree. Although the employee was ultimately permanently and totally disabled as a result of constant pain and chronic depression from the combination of her injuries, she did in fact suffer two distinct injuries occurring more than four months apart. The employer knew that she had suffered the March 1993 back injurywhen the employer permitted her to return to a less strenuous job later that sam e mont h. Under these circumstances,6 Subsection(a)(1) provides: “If an employee has previously

sustained a permanent physical disability from anycause or origin 9 the employee is entitled to separate disability awards for both of her injuries.

Furthermore, the employer received the benefits of consolidation in the case under submission. Trial c ourts are
encour aged to consolidate actions involving a common question of law or fact in order to avoid unnecessary expense and duplication of effort. See Te nn. R. Civ. P. 42.01 & advisory commission comments. In this case, although the trial court did not formally consolidate the two workers’ compensation claims, it did permit these claims to be tried in one proceeding. Thus, the trial court did not abuse its discretion in failing to consolidate the two
cases.

IV

Because the empl oyee suffered multiple injuries and is
nowpermanently and totally disabled as a result of chronic depression, it was necessary for the trial court to apportion the award for permanent total disability between the employer and the Second Injury Fund pur suan t to Tenn. Code Ann. § 50-6-208. We recentlyaddressed apportionment in Bomely . Althoughour decision in Bomelywas released after the trial court’s and the panel’s respective decisions in this case, the apportionment in this case must conform to Bomelybecause this case was pending at the time Bomelywas decided.

As we stated in Bomely , in order to decide whether a givencase is covered by Tenn. Code Ann. § 50-6-208(a) 6 or § 50-6-and becomes permanently and totally disabled through a subsequent

injury, such employee shall be entitled to compensation from such employee 's e mployer or the employer's insurance company only for the disability that would have resulted from the subsequent injury, and such previous injury shall not be considered in estimating the compensationto which such employee may be entitled under this cha pter from the employer or the employer's insurance compan y ; provided, that in addition to s uch co mpensation for a subsequent injury, an d afte r completion of the payments therefor, then such employee shall be paid the remainder of the compensation that would be due for the permanent total disability out of a special fund to be known as the ‘second injury fund’ therein created.”

7 Subsection(b)(1) provides, in pertinent part: “(A) In cases where the injured employee has received or will receive a workers' compensation award or awards for permanent disability to the body as a whole, and the combination of such awards equals or exceeds one hundred percent (100%) permanent disability to the body as a whole, the employee shall not be entitled to receive from the employer or its insurance ca rrie r any compensation for permanent disabil ityto t he body as a whole that would be in excess of one hundred percent (100%) permanent disability to the body as a whole, after combining awards. (B) Benefits which may be due the employee for permanent disability to the body as a whole in excess of one hundred percent (100%) permanent disability to the body as a whole, after combining awards, shall be paid by the second injury fund.” 10 208(b), 7 “it is impo rtan t for trial courts to make an explicit finding of fact regarding the extent of vocational disability attributable to the subsequent or last i nj ury, without consideration of any prior injuries .” Bomely , 970 S.W.2d at 934 (emphasis added). The trial court in this case may not have been
aware of the importance of making an explicit findin g as to th e extent of vocational disability attributable solely to the employee’s last in jury (the hand/wrist injury and resulting depression). Because there is no such explicit find ing , and because the parties have not had an opportunity to brief this issue, we decline to address the apportionment of liability between the employer and the Second Injury Fund. Instead, we remand this
case to the trial court for further pr oce edings consistent with Bomely and its companion case, Love v. American OleanTile Co. , 970 S.W.2d 440 (Tenn. 1998).

V11 The employer asserts that the tria l court erred in awarding discretionary costs for Lemler’s deposition and for Lenz’s testimony at trial. The award of discretionary costs is governed byTenn. R. Civ. P. 54.04(2). This rule authorizes the trial court to award costs for reasonable and necessary court reporter expenses and ex pert witness fees for depositions or trials. The award of suchcosts is a discretionary matter with the trial court. Lock v. National Union Fire Ins. Co. , 809 S.W.2d 483, 490 (Tenn. 1991).

Inthis case, Lemler gave two depositions: a discovery deposition taken by the employer’s attorney and a “deposition for proof” taken by the employee’s attorney. The employer argues that it should not be required to pay for t he “deposi tion for proof” because Lemler testified at trial.

Under the part icular facts of this case, we agree with the employer. The employee’s decision to have Lemler testify in person at trial made the “deposition for proof” unnecessary. Thus, the trial court abused its discretion by taxing the employer with the costs attributable to that deposition.

The employer also argues that it should not be liable for Lenz’s expert witness fee because the employer offered to stipulate to the authenticity of Lenz’s report. However, the employer’s offer to stipulate did not come until th e day of trial. By that time , Lenz was already present and ready to testify, and she w a s precluded from being elsewhere. We thus find that the trial court did not abuse its discretion in awarding Lenz’s expert witness fee as a discretionary cost under Tenn. R. Civ. P. 54.04.12 VI

We affirm the trial court’s judgment as to the existence, compensability, and extent of the employee’s back, hand/wrist, and psychological injuries with resulting permanent total disability. We affirm, also, as modified, the trial court’s award of discretionarycosts. However, we remand this case to the trial court for further proceedings to clarify the apportionment of liabilitybetween the employer and the Second Injury Fund in light of Bomely

and Love .
The costs are taxed to the defendant-employer for which execution may issue if necessary.

______________________________ ADOLPHO A. BIRCH, JR., Justice CONCUR: Anderson, C.J. Drowota, Barker, JJ. CONCURRING SEPARATELY: Holder, J.