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Taylor v. Senior Citizens Services8/1/2000
an award of twenty percent (20%) permanent partial disability to the body as a whole where the plaintiff suffered a superimposed cervical strain and pre-existing degenerative disc condition, but the doctor opined that there was no permanent partial impairment. The doctor did state that plaintiff would have residual symptoms and imposed a twenty pound weight lifting restriction. The Court held that this, together with the plaintiff's testimony regarding his disability, was enough to establish permanency. Griffin v. Memphis Community Tele. Found., 748 S.W.2d at 88-89.
Once causation and permanency have been established by expert medical testimony, the trial judge may consider many pertinent factors, including age, job skills, education, training, duration of disability, anatomical disabilities established by medical experts, and job opportunities available to a worker with those anatomical disabilities, to determine the extent of the worker's industrial disability. Hill v. Royal Insurance Co., 937 S.W.2d at 877 (citing Worthington v. Modine Manufacturing Co., 798 S.W.2d 232, 234 (Tenn. 1990)).
In his ruling from the bench the trial court referred to Dr. Howser's testimony as to whether the 1994 accident advanced the severity of her lumbar condition:
So I think he [Dr. Howser] starts out saying no, it didn't advance it, then he essentially says that, yes, it did advance it, because now she has a lumbar facet syndrome which she didn't have before, apparently; and aggravated a previous-existing lumbar canal stenosis and caused a radiculopathy from that standpoint.
The trial court then found that the permanent restrictions of lifting no more than ten to fifteen pounds and avoiding bending and stooping imposed by Dr. Howser for her back injury established permanency. He found that these permanent restrictions affected Ms. Taylor's ability to get employment on the open labor market. After considering Ms. Taylor's age, education, work and past work experience, and the permanent restrictions, the trial court concluded that Ms. Taylor had a ten percent (10%) permanent impairment to the body as a whole.
After reviewing the record in this case, we find that the evidence does not preponderate against the trial court's award of permanent partial disability benefits.
CONCLUSION
The judgment of the trial court is affirmed. Costs are assessed to the Appellants. We remand the case to the trial court for the entry of any order necessary to carry out this judgment.
JUDGMENT
This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference;
Whereupon, it appears to the Court that the Memorandum Opinion of the Panel should be accepted and approved; and
It is, therefore, ordered that the Panel's findings of fact and conclusions of law are adopted and affirmed, and the decision of the Panel is made the judgment of the Court.
Costs on appeal are taxed to the Appellant, for which execution may issue if necessary.
IT IS SO ORDERED.
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