### IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE October 4, 2000 Se ssion
BOBBY R. GEORGE v. BUILDING MAT ERIALS CORPORATION OF AMERICA, ET AL 

### . Appeal by Perm

ission from the Supreme Court Special Workers’ Compensation Appeals Panel

Circuit Court for Davidson County No. 98C-351 Carol Solomon, Judge

No. M1999-00449-SC-WCM-CV - Filed May 2, 2001

In this workers’ compensation case, the trial court awarded Bobby R. George 90% permanent partial disability for loss of hearing in both ears. Mr. George’s e mployer, Building Materia ls Corporation of America d/b/a GA

F Materials Corpo

ratio n (“GAF ”), filed a post- judgment motion fo

r leave to amendits answer to alle

ge a statute

of limitations defense. The trial court denied the motion. The Special Workers’ Compensation Appeals Panel (“the Panel”) reversed the trial court’s denial of the motion to amend the answer and remanded the case for further p roce edings on the statute of limitations defens

e. The Panel also r

educed the awa

rd to 50% permane

nt partial disabilit

y should the statute of limitati ons defense be unsucces sful on rem and. We dis agr ee with the Panel’s recommendation a

nd affirm the tria

l court’s judgme

nt in all respects. Tenn. Code Ann. § 50-6-225(e); Findings of Fact and Conclusions of Law by the Special Workers’ Compe

nsation Appeals Pane

l Rejected; Judgm

ent of the Trial Court

Affirmed.

J ANICE M. H OLDER , J., delivered the opinion of the court, in which E. R ILEY A NDERSON , C.J., and F RANK F. D ROWOTA , III and W ILLI AM M. B ARKER , JJ., joined. A DOLPHO A. B IRCH , J R

. , not participating. Ann Buntin Steiner, Nashville, Tennessee, for plaintiff-appellant, Bobby R. Geor ge.
James H. Tucker, Jr., Nashville, Tennessee, for defendant-appellee, Building Material Corporation of A mer ica , an d fo r def end ant , Zur ich Insu ranc e Co mpa ny.-2- OPINION
BACKGROUND

Mr. George was sixty-two yea rs old at the time of trial on November 23, 1998. He graduated from high school in 1955 and complet ed a one-year degree in I ndustrial Management at the University

of Tennessee in N

ashville in 1968. After graduating from high school, Mr. George serve d in the Army for three ye

ars. He then began working for Caterpillar Tractor Company as a burr bench operator. Beginning in 1960, Mr. George worked at a Na shville fi berglass plant, under multip le ownerships,for thirty-

eight yea rs. Between 1960 and 1985, Mr. George worked as a roving machine operator, a production foreman, and a process engineer. After GAF purc hased the plant in

1985, Mr. George was employed

as a shift supervisor in the forming room and as a supervisor over operators in other departme

nts.
Both Mr. George and GAF were aware that the noise in some areas of the plant reache d levels above one hundred decibels. Mr. George testified that the noise level in the area in which he workedwas approximately ninety decibels, a level he knew to be above the OSHA limit. Until 1986, however, Mr. George did n ot wear ear pro

tection while

working. In that

year GAF began providing hearing tests for its employees. Test results were provided both to GAF and to each employee who
was tested. Mr. George was tested nine times between 1987and 1997. Each test indicat ed a loss of hearing in both ears and a severe loss of hearing of high-pitched sounds in the right ear beginning in 1990. The results of the last test on December 4, 1997, also showed a mildhearing loss in bo

th ears for voices

and other every

day sounds.

In 1992, GAF referred Mr. George to Dr. C lyde Al ley, a hea

ring specialist,

to perform a hearing test. Dr. Alley concluded that hearing aids might help Mr. Georg e’s condition but suggested
no additional treatm

ent. Dr. Ronald C. Cate,

M.D., a board-c

ertified specia

list in o tol aryng olo gy, conducted

a physical examination and an audiogram of Mr. George on November 14, 19 97. Dr. Cate diagnosed

Mr. George as h

aving a sensori

neural hearing

loss in both ears. Dr. Cate opined that the noise level in the GAF plant most likely aggravated Mr. Geor ge’s hearing condit

ion, causing it to
worsen. Although Mr. George might benefit from the use of a hearing aid, Dr. Cate concluded that
no surgery or

other treatment w

as available

to improve Mr. George’s condition. Dr. Cate assessed Mr. G eorge’s hearing loss based upon the AMA Guidelines at 7.5% in the right ear, 13.1% in t h e left ear, and 8.4

% in both ears.

Dr. David S. Hay nes, M.D., an ear, nose, and throat d octor speci alizing in neurotolo gy (hearing imbalance disorder), saw Mr. George on May 7, 1998. Dr. Haynes performed a phy sical examination and hearing test. The results showed that Mr. George had a bilateral hear ing loss that
was worse in his right ear. Using the AMA Guidel ines, Dr. Haynes rated

Mr. George with

17% impairment

to his right ear, 19% impairment to his left ear, and 17% impairment to both ears. Dr. Haynestestified that the overall impairment rating would be 17.2%. Assuming that Dr. Cate’s test results were valid, Dr. Hay nes stated that Mr.

George appea

red to have a progre

ssive hearing lo

ss. Dr. Haynes concluded that this loss was caused in part by aging and by

exposure to loud noise during1 We agree with the Panel’s holding that GAF had actual notice of Mr. George’s claim. Tenn. Code Ann. § 50-6-201 provides an e xception to the thirty-day notice requireme nt if the employe r has actual no tice of the injury. (continued ...)
-3- his military term

and hunting trips. In Dr. Haynes’ opinion, however, the most likely ca use of Mr. George’s hearing loss was his noisy work environment. Dr. Hay nes testified t hat he would recommend fu ture medical treatment for Mr. George in the form of hearing aids for both e ars, an MRI scan, and frequent audiologic testing, with adjustments to the hearing aids as ne eded.

Mr. George testified that his hearing capacity in a n industrial setting is diminishe d. T o understanda conversation in an environment with loud background noise he must look directly at the person speaking to him. Mr. George’s wife testified that his hearing has worsened. He cannot hear her speaking to him if his back is turned to her or if there is background noise such as a TV or radio. Mr. George’s son

corroborated th

is testimony. Mr

. George testif

ied, however, tha

t he is able to hear without difficulty in an environment with a normal level of background noise. For example, he had no difficulty hearing the questions asked of him during his deposition.

Mr. George testified that he was exposed to l oud noi se d uri ng hi s se rvi ce i n th e mi lit ary. He estimated, however, that this ex posur e would have occurred during less than 5% of his military service and that he noticed no hearing loss after he left the military. Mr.George also testified that he was exposed to loud noise when hunting or using a chainsaw at home. He wears ear protection when he hunts approximately two times per year.

After a three-day hiatus in his employment, GAF asked Mr. George to relocate to the GAF plant in South Korea. He

worked in South Kor

ea from Februa

ry to April, 1 998, retu

rning tohis position in the Nashville plant for only a short time before being laid off at the be ginning of June 1998. Mr. George testified that he never missed any work due to h is i nju ry. He speculated th at his hearing was a factor in h is discharge. A

fter le aving GAF, Mr. George did not seek other employment.

The trial court found that

Mr. George had sustained 90% permanent pa

rtial disability

to both
ears based upon his advancing age, limited education, length o femployment, and lack of broadbasedskills. The trial court ruled that GAF had waived its statute of limitations defense, raised for the first ti me in GAF’s pre-trial brief, for failure to timely raise the issue. The trial court subsequently

denied GAF’s post-trial motionto amend its answer to include a statute of limitations defense. The trial court held that GAF had actual notice of Mr. George’s injury through the hearing test results provided to both GAF and Mr. George.

GAFappealed, alleg

ing that Mr. Geor

ge’s claim

was barred by the statute of limitations and for failure to give timely notice. GAF also argued that the evidenc e preponderates against an award of 90% perm anen t pa rti al d isa bil ity. The appeal was referred to the Special Workers' Compensation AppealsPanel (“the Pane l”) pursuant to

Tenn. Code Ann. § 50-6-225(e)(3). The Panel agreed with the trial court’s finding that GAF received actual notice of Mr. George’s inj ury. 1 It held, however,1 (...continue d) GAF was aware of the nois e level in i

ts Nashvill

e plant, provi

ded hearing tests for its employees, and rece ived copies of the tes t resul ts. Moreover

, GAF sent Mr. Geor ge to a heari ng specialist in 1 992. W e agree with the Panel’s
assessme

nt that GAF had as much not

ice of Mr. Geor

ge’s hea ring l oss as he had.
-4- that the trial court erred in not permitting GAF to amend its answer to alle

ge a statute

of limitations defense and in failing to c ontinue the trial for a reasonable time. The Panel further found that “a 50% vocational disability would be more in line with the facts of this case.” The Panel ordered that the case be remanded to the trial court to allow GAF to present its statute of

limitations defense and for reduction of the disability award should Mr. George prevail upon remand. We gr anted Mr. George’s petition for full Court review pursuant to Tenn. Code Ann. § 50-6-225(e)(5).
ANALYSIS

AMENDMENT OF ANSWER

The trial in

this case began on Monday, November 20, 1998. GAF first raised the statute of limitations defense

in i ts p ret ria l br ief fil ed o n th e pre cedi ng Fr ida y, eight months after GAF filed its answer. Before the trial commenced, GAF requested that the pleadings be amended to conform to the proof to be presented. The trial court took the issue under advisement, requested briefing on the issue, and pro

ceeded with

a trial on the remaining issues related to Mr. George ’s dis abili ty. In its findings of

fact, the trial court found that GAF waived the statute of limitations defense by failing to raise the defen

se in its answer. GAF

filed a motion to ame

nd its answer unde

r Tenn. R. Civ. P. 15 to include the statute of limitations defense. The trial court denied GAF’s motion

. The Panel
re vers ed the trial court’s decision and remanded the case for determination of the statute of limitations issue on its merits. We hold that the trial court did not abuse its discretion in declining to allow GAF to amend its answer.

Rule 15.02

We first address GAF’s initial request that the pleadings be amended to conform to the proof to be presented at trial. Rule 15.02 of the Tennessee Rules of Civil Procedure allows amendment of the pleadings to c

onform to the evide

nce presented o

n any iss ue trie d by express or implied consent. Although we have held that the timing of a motion to conform is inconsequential, Zack Cheek Builders, Inc. v. McLeod, 597 S.W.2d 888, 890 (Tenn. 1980), a motion un der Rule 1 5.02 must by its very nature be filed following presentation of evidence concerning the issue in question. “[T]he real question bef

ore us is not whether the amendment was timely made, but whether or not the parties actually

tried the issue delineated by the amendment.” Zack Cheek Builders, Inc. , 597 at 890.
Here, GAF asked that the pleadi ngs be amended to conform to the evidence before any evidence had been presented. Mr. George objected to trial of the statute of limitations issue, and there is no evidence in the record t hat he later imp

liedly consented to trial of the issue. Mere-5-

introduction into evidence of the relevant dates surrounding Mr. George’s injury does not amount to trial of the statute of limitations defense by implied consent. That evidence was used to establish
a connection between

Mr. George’s h

earing loss and

his employme

nt with GAF. The trial c

ourt did not err when it de

clined to grant G

AF’s pre-trial

motion to conform.

Rule 15.01

We next address the trial court’s denial of GAF’s post-trial motion to a mend its answer. Rule 15.01 of the Tennessee Ru les of Civil Procedu

re provides that a

party may

amend a pleading

to which no responsive pleading is permitted within 15 days after it is served if the action has notbeen set for trial. Tenn. R. Civ. P. 15.01. “Otherwise a party may amend the party’s pleadings only by written consent of

t he adverse party or by

leave of the court; and leave shall be freely g iven when justice so requires.” Id. We have mainta in ed that the determination of whether to allow an amendment

to the pleadings i

s left to the sound discretion of the trial court. Harris v. St. Mary’s Med. Ctr., Inc. , 726 S.W.2d 902, 904 (Tenn. 1987). “Amended pleadings may be filed before

trial, after trial, or even after

appeal so long as the trial court has jurisdiction and so long as the trial court does not abuse its discretion in allowing the amendment.” Id.

Rule 8.03 of the Tenne

ssee Rules of Civil Pr

ocedure requir

es that a statute of

limitatio n s defense be specifically pleaded. See al so Sands v. State , 903 S.W.2d 297, 299 (Tenn. 1995); Travelers Ins. Co. v. Austin , 521 S.W.2d 783, 785 (T enn. 1975). Gene

rally, fail ure to do so

results in a waiver

of the defense.

Tenn. R. Civ. P. 12.08 ; see also Denny v. Webb , 199 Tenn. 39, 44-45, 281 S.W.2d 698, 701 (1955); Steed Realty v. Oveisi , 823 S.W.2d 195, 197 (Tenn. Ct. App. 1991). It is well settled, however, that if the opposing party is given fair notice of the defense and an opportunity

to rebut it, failure to specifically plead a statute of limitations defense will notresult in
a waiver. Sands , 903 S.W.2d at 299. “In other words, the purpo se of the specific pleading requirement

is to prevent a party from rai sing a defense at the last possible moment and thereby prejudicing the opposing party’s opportunity to rebut the defense.” Id. It is within the trial court’s discretion to decide whether to allow a party to file a statute of limi tations plea after the trial has begun. Steed Realty

, 823 S.W.2d at 197.

In Gardiner v. Word , 731 S.W.2d 889 (Tenn. 1987), we lis ted the following nonexclusive set of factors for a trial court to consider when deciding whether to grant a motion to amend: “undue delay in filing the

amendment, lack of notice to the opposing party, bad fai th b y the mov ing p art y, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opp osi ng pa rty, and the futility of the amendment.” Id. at 891-92. In this case, GAF raised its

statute of limitations defense at the last possible moment, essentially the night beforetrial. GAF’s articulated reason for d elay in requesting the amendment was that it was previously unaware of a n unreported Special Workers’ Compensation Appe als Panel opinion co

ncerning the sta

tute of limita

tions de fense in2 Austein v. Riv erwood Int ’l USA, Inc. , No. 02S01-9704-CH -0037, 1998 W L 142131 (T enn. Sp. Workers

Comp. Mar. 30 , 1998) (h olding that the r eceipt of hea ring test results imp osed a du ty upon the p laintiff to use due diligence to determine the nature and extent of his hearing loss and whether i t was work related).

3 GAF’s inclusion of language in i ts answer purporting to reserve the right to allege addi

tional defenses after
a more co mplete inve stigation had n o legal effect an d affords G AF no re lief.
-6- hearing loss cases. 2 The record does not reflect that the Panel decision represented a new development

in the law. Based upon our review of the record, it appears that GAF’s delay in raising its statute of limitations defense was not justified.

HadGAF been

allowed to address the defense at t rial, Mr. Ge orge would have been denied
a sufficient opportunity to rebut the defense. The parties had set the trial date by ag

reement. Rule 27.03 of the Davidson County Local Rules of Practice states, “When a case is set by agreement . . . all counsel are certifying they are available for trial and that the case will be in all

respects ready for trial on the trial date. ” Moreover, Rule 27.05(a) of the lo

cal rules provide

s that a case “will not be continued except for good cause which shall be brought to the attention of t he court as s oon as practicable

before the date

of the trial.” Mr.

George should n

ot have been for

ced to accept a continuance to meet a las t-minute statute of l imitations defense rai sed by GAF.

The specific pleadi

ng requiremen

ts of Tenn. R. Civ. P. 8.03 are designed to prevent trial by ambush in situations like the one at hand . Under these circumstances, justice did not require allowing amendment of the plead ings under Rule 15.01. 3 We thereforehold that the trial court acted within its discretion in denying GAF’s motion to amend its an

swer after tria

l to include a statut

e of limitations defense.

VOCATIONAL DISAB ILITY RATI NG

The Panel reduced th

e trial court’s pe

rmanent partial d

isability award from 90% to 50%. The Panel pointed to Dr. Cate’s diagnosis of an 8.4% hearing loss on Novem ber 14, 19 97, and Dr. Haynes’ diagnosis

of a 17% hearing loss on M ay 7, 1998. T

he Panel also note

d that Mr. Georg

e is able to hear in environ

ments without high l

evels of background noise away from industri al settings and that Mr. George’s hearing

impairment did not in

terfere with his

job performance

or cause him to miss any time from work.

“The extent of vocationa l di sab ili ty is a question of fact to be determined from all the evidence, including lay and expert testimony.” Nelson v. Wal-Mart Stores, Inc. , 8 S.W.3d 625, 629 (Tenn. 1999). Anatomica l impairment is a

distinct finding f

rom vocational dis

ability and is but one factor to be considered

in determining the extent of vocational disability. Cleek v. Wal-Mart St ores, Inc. , 19 S.W.3d 770, 774 (Te nn. 2000); Story v . Le gion Ins. Co. , 3 S.W.3d 450, 456 (Tenn. Sp. Workers Comp. 1999). That an injured worker has not missed work does not preclude an award of workers compensation benefits. Story , 3 S.W.3d at 454. “[A] vocational impairment is measured not by whether the

employee can return to her former job, but whether she has suffered a d

ecrease in her ability to earn

a living.” Id. at 456. In determining the extent of vocational disability, the trial-7-

court should consider the employee’s age, education, job skills and training, the extent andduration of anatomical impairment, local job opportunities, and the employee’s capacity to work at the types of employment available considering the employ ee’s disabled

condition. Id. ; Cleek , 19 S.W.3d at 774; McIlvain v. Rus sell Stover Candies , Inc. , 996 S.W.2d 179, 183 (Tenn. 1999). The trial court’s determination of the extent of voc ational disability

is reviewed “de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unle

ss the preponderance of the evidence is ot

herwise.” Tenn . R. App. P. 13(d); see also Nelson , 8 S.W.3d at 629.

The trial cou rt in this c ase properly considered the a

bove-outlined fa

ctors in making its disability award. The cour

t based its determi

nation of 90% perm

anent partia

l disability on the medical testimony of D

rs. Cate and Hay

nes, including th

eir assignment o

f anatomical impa

irment,
an d Mr. George’s “advancing age, limited education, length of time at one job, and lack of broad basedskills.” Mr. Georg e was sixty-tw

o years old

at the time of trial. He ha d worked in the sam

e industrial setting for thirt

y-eight y ears. There is no evidence in the record showing tha t Mr. George had ot her educa tion, skills, or trai ning that would en

able him to work in a

different envir

onment. His capacity to work in an industrial setting has decreased

due to hearing l

oss connected wit

h his work environme

nt. Based upon our review of the record, we do not find that the evidence preponderates against the trial court’s finding o f 90% perm

anent par tial disab ility in this case . We thereforereject

the Panel’s recommendation and reinstate the trial court’s judgment awarding Mr. George benef

its based upon 90% p

ermanent partia

l disability to

both ears.
CONCLUSION

Because G AF failed to timely raise its statute of limitations defense, we hold that the trial
c ourt did not abuse its discretion in refusing to allow GAF to amend its answer to i nclude th e defense. Moreover, the evidence does not preponderate agai nst the trial court's award of 90% permanent

partial disability to both ears. Accordingly, w e reject the recommendation of the Special Workers' Compensation Appeals Panel and affirm the trial c

ourt's judgmen

t in all respects. C

osts of this appeal are t

axed to the appell

ants , Building Materials Corporation of America d/b/a GAF Materials Corporation and Zurich Ame rican Insur

ance Company

, for which execut

ion may issue

if
nece ssa ry.

___________________________________ JANICE M. HOL

DER, JUSTICE