### IN THE SUPREME COURT OF TENNESS EE

SPECIAL WORKERS’ COMP ENSATION APPEALS P ANEL

AT KNOXVILLE Septem ber 26, 200 1 Session JOHNNY JENKINS v. KE MPER INSURA NCE CO. Direct Appeal from the Circuit Court for Anderson County No. 99LA0396 James B. Scott, Jr., Judge

No. E2001-00154-WC-R3-CV - Mailed - October 31, 2001

FILED: DECEMBER 7, 2001

This workers' compensation appeal has be en referred to the Specia l Workers'

Compensa

tion Appe als Panel of the Supreme Court in accordance with Tennesse e Code Annotated § 5 0-6-225(e) (3) for hearing and reporting to the Supreme Court of findings of fa ct and conclusi ons of law. The trial court found the

plaintiff sustaine d an 80 pe

rcent pe rmanent partial d isabilit y to his rig

ht leg a s a result of his knee i

njury . We affir

m the judg

ment of the

trial cou rt. Tenn. Code A nn. § 50-6- 225(e) ( 1999) Appe al as of Right ; Judgme nt of the Cir cuit Cour t is Affirmed J OHN K. B YERS , S R . J., delivered the opinion of the court, in which E. R IL EY ANDERSON , J. and R OGER E. T HAYER , S P . J., joined. Cl in t W oo df

in , K no xv il le , T en ne ss ee , f or th e a pp el la nt , K em pe r In su ra nc e C om pa ny. Bruce D. Fox, Clint

on, Tenne ssee, fo r the app ellee, Joh nny Jenkins. MEMORAN

DUM OP INION The plaintiff, age 39 at the time of trial, has a hig

h school di

ploma and a wor

k history as a skilledconstruction laborer. He has done electric al work, but has no formal training or certification as an electrician. The plaintiff was injured on Octobe r 24, 19 98, while

working for Solutions to Environmental Problems, the defe ndant’s i nsu red. The plaintiff was se aling dr ain lines w

ith concr ete at Center Hill dam when he an another worker attempted to move a large rock. While moving the rock the plaintiff felt a pop in his right knee followed by a “warm” sensation. By

the next day, the plaintiff could not walk and sought medicaltreatment. Eventually he required several reconstructive kn ee su rg er ie s a nd ph ysi ca l t he ra py; he ha s n ot be en ab le to re tu rn to wo rk si nc e t he in ju ry.-2- Medical Evidence Dr. Clifford Posman, an orthopedic surgeon initially treated the

plaintiff. Physical therapy and other conservative treatment failed to improve the plaintiff’s c ondition, so on April 6, 1999, Dr. Posman performed surgery on the plaintiff’s right knee. When the plaintiff continued to experience pain, Dr. Posman referred him to Dr. Michael MacKa y, another or

t hopedi c surge on in the sa me practice group. Dr. MacKay

ordered a follow-up MRI, which revea led a torn meniscus in the plaintiff’s right knee. On September

8, 1999, D r. MacK

ay perfor med surg ery

to repair the tear. The plaintiff later underwent

a third su

rgery as w ell as a second

round of physical ther

apy befor e being placed at maximum medical improvement on March 28, 2000. Dr. MacKay recommended a cane as nee ded and gave the plaintiff a knee brace, which the plaintiff testified he uses daily . Dr. MacKay testified the plaintiff

could not return to his previous employment in par t because he could not c limb ladde rs. Before his deposition, Dr. MacKay assessed a

17 percent

impairment based on the plaintiff’s knee in ju ry. However, during cross-examination while responding to questions from the defend an t’s counsel, Dr. MacKay

testified 10 percent might be more appropriate

. The trial cou

rt found t he plaint iff had s ustained 80 perce nt disabili

t y to his right leg a s a result of the knee injury . We affir

m the judg

ment of the

trial cou rt.

Discussion Review of the findi ngs of fact made by the trial court is de novo upon the record of the trial court, ac co mp an ie d b y a

presumption of the correctness of the findings, unless the preponde rance of the evidence is otherwise. T ENN . C ODE ANN . § 50-6-225(e)(2); Stone v. City of McMinnville, 896 S.W.2d 548, 550 (Tenn. 1995). The application of this standard r equires this Court to

weigh i n more depth the factual findings and conclusionsof the tri al court in worke rs’ compensa

tion case s. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). The defenda

nt prese nts two issues in this appeal. First, the defendant argue s the trial court erred in failing

to conside

r the 10 pe

rcent imp airment r

ating di s cus sed during Dr. MacKay ’s deposition. We find no error with respect to t hi s issue and resolve the question in favor of the plaintiff. Dr. MacKay

assesse d the plai

ntiff’s 1 7 perce

nt impairm e nt rating usin g Table 36 of the f

ourth edition of the AMA Guidelines. While cross-examining D r. MacKay , the defendant’s counsel quoted from the t

ext prece ding Ta

ble 36 and

questione d Dr. Mac Kay

about the ta b le vis-à-vis the 17 percent impairment rating. Dr. MacKa y ag reed that 10 percent might be more appr opriate. The defendant’s second argument is that the trial court er red by failing to fully consider the plaintiff’ s age, e ducation , work expe rience , skills and

training . The def

endant’ s content

ion is-3-

somewhat perplexing in view of the fact that the trial cou

rt specif ically mentione d these f

actors in its judgmen

t. Further more, the se fact

ors go to vocational disabil ity. A worker does not ha

ve to show vocational disability

or loss of earning capaci ty to be entitle d to the benefits for the loss of use of a scheduled member. Dunca n v. Boeing Tenn., Inc., 825 S.W.2d 416 (Tenn. 1992). We therefore affirm the judgment of the trial court The costs of this ap peal ar e taxed to th e defen

dant.

___________________________________ JOHN K. BYERS, SENIOR JUDGE-4- 

### IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE, TENNESSEE

JOHNNY JENKINS VS. KEMPER INSURANCE COMPANY

Anderson County Circuit Court No. 99LA0396 No. E2001-00154-WC-R3-CV - Filed: Dec ember 7, 2001

JUDGMENT This case is before the Court upon the entire recor d, including the order of referr al to the Speci al Worker s' Compe nsation Ap

peals Panel , and t he Pan el's memorandum Opinion setting forth its findings of fact and conclusions of law, which ar e incorporated herein by

reference; Whereupon, it app ears to the Court that the memorandum Opinion of the Panel should be accepted and approved; and

It is, theref

ore, ord ered tha t the Pane l's find

ings of f acts and conclusions of law are adopted a nd affir med and th e decisi on of the Pa nel is made

the Judgme

nt of the Co

urt. Costs on appeal are taxed to the appellant, Kemper I nsurance and Clint W o odfin, surety, for w

hich execution may issue if nece ssary. 12/07/01