# FILED
December 21, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE

SHARON WALKER, ) ) FILED: December 21, 1998 Plaintiff/Appellant ) ) MAURY CIRCUIT V. ) ) HON. JIM T. HAMILTON, SATURN CORPORATION, ) JUDGE ) Defendant/Appellee ) No. 01S01-9703-CV-00048 ) )
For the Plaintiff/Appellant: For the Defendant/Appellee: J. Anthony Arena Thomas H. Peebles, IV Schulman, LeRoy & Bennett, P.C. Dana C. McLendon Nashville, Tennessee Waller, Lansden, Dortch & Davis Columbia, Tennessee



### OPINION

REVERSED BARKER, J.1 The record refl ects that Walker initi ally received t reatment from Dr. Parsons, but began seei ng Dr. Th oma s, who w as in the s ame practice g roup, in Ju ne of 19 94. 2 We granted the plaintiff ’s motion for full court review of the Special W orkers’ Compensation Appeals Panel’s findi ngs of fact and conclusions of law to determine whether the Panel erred i n deciding: (1) that the e vidence preponderates agai nst the trial cour t’s finding

that plaint iff suffered a per manent partia l disability to the r ight arm; and (2) that the evidence pr eponderates against an eighty-five percent permanent partial d isability t o the pla intiff ’s left ar m. For the reasons c ontaine d herein, we conclude that the Panel erred in finding no permanen t disability to the right arm and in reducing the disabilit

y to her left arm to six

ty percent. According ly, the decision of the Panel is reversed and the trial court’s judg ment is affirmed.

BACKGROUND
The plaintiff, Sharon Walker, was thirty -three years old at the time of trial and had been employed by Saturn C orporation since it opened its Spring Hill pla nt in 1990. She was empl oyed as a member of a work team, and her tasks included inst alling seat belts and seat ramps into n ew automobiles and inserti ng numerous screws i nto car frames. Those activiti es required the repetiti ve use of power tools. O n April 22, 1994, Walker reported to the Saturn Medical Department complaining of pain i n her left wrist and numbness in her left hand, thumb, an d fingers. She was eventually referred to Dr. Paul Parson s and Dr. Paul Thomas for treatment. 1
Dr. Parsons diagnosed the plaintiff’s condition as tenosy novitis and followed a conservative treatment regimen. That treatment prov ed unsuccessful and when the plaintiff saw

Dr. Thomas on

June 13, 1994,she complain ed of persist ent left thumb pain. He found that she had “left thumb Dequervain’s stenosi sing tenosynoviti s” and recommended surgery to r elease the pressure from the tendons . Dr. Thomas3

performe

d surge ry on J une 15, 1 994, and following phy sical t herapy , the pla intiff returned to work on September 14, 1994, with restri ctions on the use of her left hand.
On October 26, 1994, plaintiff complai ned to the Saturn Medical Depar tment of numbness and tingling in her right wrist . She returned to Dr. Thomas w ith complaints of pain in her right thumb and s tated that it worsened w ith her activities at Saturn. On January 26, 1995, Dr. Thomas diagnosed the plaintiff with “right wrist Dequervain’s stenosising tenosyno vitis” and placed he r on perma nent rest rictions a gainst rep etitive thumb activities such as grasping or pinchi ng. He hoped that the permanent restrictions would

avoid any further probl ems with the employee’s right arm.
Ms. Walker again visited Dr . Thomas on March 16, 1995, complaini ng of numbness in the fourth and fifth fingers of her left hand. Dr. Thomas believed she had a probable entrapment of the ulnar ner ve in her left elbow, a

diagnosis which w

as later confirmed with nerve conduction studies. After conservative treatment f ailed, Dr. Thomas again performed surgery , this time a transpositio n of the ulnar nerve of the plaintiff’s left elbow.
Dr. Thomas testified by deposition that the tenosynovitis in plaintiff’s wri sts was caused by her work a

t Saturn. He opined that the pl aintiff was able to work, provided she observed the permanent res triction of no repetitiv

e use of the thumbs for pinching or gripping and avoided the use of power tools. He also said that the plaintiff shou ld avoid repetitive bendi ng of her left elbow. Usi ng the AMA guidelines, Dr. Thomas determined that the plaintiff suffered a three percent permanent impairment to her left upper extremity. Dr. Thomas testified on cross-ex amination that another method of evaluating the permanent impairment could result in an impairme nt rating of six percent to the left arm. Dr. Thomas did not assign an impairment rating to the4

plaintiff’s right wr

ist or hand, stating that her complaints in that reg ard had been sporadic.
On February 6, 1996, Dr.David Gaw performed an i ndependent medical examination on the plaintiff. He reviewed records from Dr. Parsons and Dr. Tho mas, and medical records from Saturn Corporation. Relying upon that info rmation, as well as his own examination,he determined that Ms. Walker suffered a five per cent permanent impairment to her left upper extremity as a res ult of the tenosynovitis in the left thumb and wrist. A ten pe rcent permanent impairment resul ted from the ulnar transposition, culminating in a combined fifteen percent impairment to her left upper extremity. In accord with Dr. Thomas, Dr. Gaw stated that the plaintiff should avoid repetitive use of her left el bow and wrist. H e found no permanent impairment to her right arm because Ms. Walker did not report “any history of problem s with that.” He admitted, however, that the records he review ed contained plaintiff’s complaints about her right wrist

and thumb.
Rebecca Williams, a vocational speci alist, testified that she ev aluated the plaintiff on August 1, 1996, to asses s any vocational dis

ability Ms. Walker suffered from her injuries. Ms. Williams tes tified that she considered the pl aintiff’s limitations to both hands and left elbow per the restrictions from Dr. Thomas and Dr. Gaw. She characterized the plai ntiff’s job as unskilled labor and said that her previou s skills from bartending and waitres sing were non-trans

ferable and of little use in any other job. Ms. Walker previously obtained a GED and had attended some colleg e and vocational classes, specifically

receiving traini ng in keypunch, a now obsolete method of computer data entry.2 The assembly of automobil es at Saturn i s performed in tea ms. A person may not be a team member unless he or she is abl e to perfor m every task assigne d to the team. The restrict ions on her hands and left

elbow prevent

s the plai ntiff

from performing all

the team activ iti es. 5 The plaintiff’s reading, spell ing, and math skills w ere poor for her age. Following a dext

erity examination, M s. Williams found that the plaintiff lacked dexte rity in both hands, which she c onsidered a disabling factor

.
Because the plaintiff had no transferable job skills and sign ificant physical limitations, Ms. Williams opined that the plaintiff had no reasonable expec tation of employment in the local job market. Of the 10,980 job s in Maury County for which plaintiff was qualified, onl y 348 were avail able to her because of her disabil ity. The number “348" represented the number of jobs and not the number of positions actually open. Considering Ms. Walker’s education level and lack of acquired job skills, combined with the permanent restrictions on both hands an d her left elbow, Ms. Willi ams test ified th at the pla intiff had a nine ty-seven pe rcent occ upation al disabi lity.
The plaintiff testified that her wor k at the automobile assembly p laint required repetitive activity with her wrist and elbow, including extensive use of power tools during her entire ten-ho ur shifts. While she had previously worked as a bartender and waitress, she testified

that she could no longer per form those jobs because they required excessiv

e use of her wrists and el bow.
Following the first

surgery on her wrist, the plaintiff said that s he had been unable to return to work as a fully functional team member bec ause of the permanent restrictions. 2 In spite of utilizing the placement process at Saturn , Ms. Walker was unable to find another job at the plant which she could perform g iven her restricti ons. She testified that she was pl aced on long-term disabil ity leave May 1 0, 1996, and had not worked since the n. She ha d never do ne any work t hat did n ot involve r epetitive6

use of the thumbs or bending of the elbow. In addition to experienc ing pain in her hands and wrist, the plaintiff testified that the extensio n of her left arm is limited, which affects her ability to do housework and play sports.
The trial court found that the plai ntiff suffered an eighty-five per cent permanent partial disability

to both arms and granted her mot ion for a lump sum award. Upo n review, the Panel found that the expert medical testi mony did not support a finding of any permanent impairment to her upper right extremit y. The Panel also determined that the trial court’s aw ard of an eighty-five per cent permanent partial disabi lity to the plaintiff’s left arm was ex cessive and not supported by the evidence. The Panel reduced the award based upon a fin ding that the plaintiff had sustai ned a sixty percent permanent par

tial disabi lity to he r left arm.

ANAL YSIS
We begin our analysis by statin g a few well-settled principles. Our r eview of the findings of fact made by the trial court is de novo upon the record of the trial c ourt, accompanied by a presumption of cor rectness, unless the preponder ance of the evidence is otherwi se. Tenn. Code Ann. § 50-6-225(e) (2) (Supp. 1998). Because the issue and extent of a permanent v ocational disability

are questions of fact for the tri al court to determine, we al so review those is sues under the de novo standard of review. Jaske v. Murray Ohio Mfg. Co. Inc. , 750 S.W.2d 150, 151 (Tenn. 1988); Corcoran v. Foster Auto GMC, Inc. , 746 S.W.2d 452, 458 (Tenn. 1988). In our revi ew, we are not bound by the trial court’ s factual findings, but rather examine them in depth and conduct an independent examination to determine where the prepond erance of the evidence lies. Galloway v. Me mphis Dru m Serv. , 822 S.W.2d 584, 58 6 (Tenn. 1991).7 With the foregoing in mind, we first c onsider whether the ev idence supported the trial court’s finding

that the plaintiff had sustained a per manent partial disability to her right upper extr

emity. The Panel found no disabili ty to the right arm bec

ause the medical experts declined to find any permanent anatomical impairment to the plaintiff’s right wr

ist or hand. Howev

er, we believe ther

e was other evidence w ithin the record sufficient to support the trial court’s finding of permanent industrial disabil ity to plaintiff’s right upper ex tremity.
An anatomical impairment rating is not always indispensable to a trial court’s finding of a permanent vocational impairment. See Newman v. National Union Fire Ins. Co. , 786 S.W.2d 932, 934 (Tenn. 1990); Corcoran , 746 S.W.2d at 457. In fact, anatomical impairment is dis tinct from the ultimate issue of v ocational disability

that the trial court must asses s. Wilkes v. Resource Auth. of Sumner County , 932 S.W.2d 458, 463 (Tenn. 1996); Perkins v. Enterprise Truck Lines, Inc. , 896 S.W.2d 123, 125 (Tenn. 1994). An employee should not be denied compensation solely because she is unable to present a wi tness who will t

estify to the exact perc entage of her medical impairment. Corcoran , 746 S.W.2d at 457. As a result, the Panel err ed in finding no disability to the plai ntiff’s right arm based solel y on the lack of an anatomical r ating to that scheduled member.

In contrast, the evidence e stablished that Ms. Walker has a disabl ing condition in her right wrist and hand. On August 11, 1993, Dr. Parsons noted in plaintiff’s medical records that she had “ a little bit” of Dequerv

ain’s extensor tenosy

novitis in the right wrist. P laintiff later reported proble ms with her right w rist to the Saturn Medical Department in October of 1994. Then, on J anuary 26, 1995, Dr. Thomas diag nosed the plaintiff with “right wrist Dequervain’s stenosising tenosynovitis.”8 Dr. Thomas characterized the condition as “chronic” and went on to say that grasping or pinching activities at work would worsen her symptoms. As a result, Dr. Thomas placed her on permanent restrictions against repe titive thumb activities such as grasping or pinching. Dr. Thomas’ characterization of the condition as “chronic” and the placement of permanent restric tions on the use of her right thumb is sufficient to prove that plaintiff’s thumb an d wrist condition i mpaired her ability to use her right arm and that the condition was permanent. See Hill v. Royal Ins. Co. , 937 S.W.2d 873, 876 (Tenn. 1996) (basing per manent impairment on the imposition o f permanent restrictions wher

e no anatomical impairment was given).

The secon d issue has been redefin ed by ou r deter minatio n that th e plaint iff suffered a permanent impairment to her r ight hand. The proper inqui ry now is whether the evidence preponderates against the percentage of permanent par tial disability to both of plaintiff’s arms assessed by the trial court. The Pa nel reduced the trial court’s industrial disability

rating to her left arm becaus e of the small anatomical impairment rating and because of its conclusion that the proof showed an impairment only of her ability to work at Saturn. In reaching its decision, the Panel failed t o consider relevant evidence regarding

how Ms. Walker’s earning capac ity had been diminished in the open labor market.
The Panel correctly held that a vocational impairment is measured not by whether the employee can r eturn to her former job, but w hether she has suffered a decrease in her ability

to earn a living. See Corcoran , 746 S.W.2d at 458. T his Court stated in Corcoran that a vocational disabi lity results w hen “the employee’s ability to earn wages in any for

m of employment that would hav e been available to him in an uninjured condition is diminished by an injury.” Id . at 459.9 In assessing the extent of an employee’s vocational disability, the trial court may consider the employee’ s skills and training , education, age, local jo b opportunities, anatomical impai rment rating, and her capaci ty to work at the ki nds of employment available in her disabled condition. Tenn. C ode Ann. § 50-6-241(b) (Supp. 1998); Worthington v. Modine Mfg. Co. , 798 S.W.2d 232, 23 4 (Tenn. 1990); Roberson v. Loretto Cask et Co. , 722 S.W.2d 380, 384 (Tenn. 1986). Further, the claimant’s own assessment of her physical conditio n and resulting disabil ities cannot be disregarded. Uptain Constr. Co. v. McClain , 526 S.W.2d 458, 45 9 (Tenn. 1975); Tom Still Transfer Co. v. Way , 482 S.W.2d 775, 77 7 (Tenn. 1972). The trial court is not bound to accept physicians’ opinions regarding the extent of the plaintif f’s disability, but should

consider all the evi dence, both expert and lay testimony, to decide the extent of an employee’ s disability. Hinson v. Wal-Mart Stores, Inc. , 654 S.W.2d 675, 677 (T enn. 1983).

The evidence showed that the plaintiff could not return to her activities at the Saturn facility. The testimony of Rebecca W illiams also established that Ms. Walker’s disability severely hampered her ability to earn a living in the open labor market in Maury Coun ty.
Finally, we consi der the plaintiff’s own asses sment of her condition. She testified that she is no longer able to perform the f orty or fifty jobs that she has done in her career in the automobile manufacturing industry bec ause of the restriction on the repetitive use of her elbow and thum bs. Likewise, the p laintiff tes tified that al though she has worked as a barten der and waitress, she c ould no longer work as a bartender or waitress because of the demand those jobs place on her wrists and elbow. The plaintiff has never done any w ork that would not req uire repetitive use of her thumbs for gripp ing or repe titive ben ding of th e elbow.10 Although the medical testimony did not establish a great percentage of anatomical impairment, the tri al court obviously gave substantial cr

edence to the testimony of the vocational expert regarding Ms. Walker’s ability to work. The record on appeal does not preponderate against the trial court’s f indings.

In view of Ms. Walker’s limit ed training, her education , considerable medical restrictions, lack of transferable job skills, and the local job opportunitie s, the plaintiff’s capacity to work i n areas previously available to her has been significantly reduced by her current disability. Accordingly, w e conclude that the trial cou rt’s finding of an eighty-five percent

permanent partial disabili ty to both arms is suppor ted by the preponderance of the evidence. The record indicate s that the employer, Saturn Corporation, complained before the Panel of the propriety of the tr ial court’s judgment commuting the employee’s disability award to a lump sum payment. The Panel did not address that issue on the merits. Because Saturn has no t raised that issue before us, we will not address it at this time. The judgment of the trial court is affirmed in all respects. Costs are tax ed to Saturn Corporation.

_______________________________ William M. Barker, Justice
CONCUR: Anderson, C.J., Birch, Holder, JJ. Drowota, J., not parti cipating