 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Cooksey v. CNA Insurance Co.12/20/1999
ment, local job opportunities, and the employee's capacity to work at the kinds of employment available to him or her in a disabled condition. Collins v. Howmet Corp., 970 S.W.2d 941, 943 (Tenn. 1998).
In our review of the record, we find that the trial court did not make specific findings to justify an award using a multiplier of five (5) or greater as required by Tennessee Code Annotated ยง 50-6-241(c); therefore, no presumption of correctness exists as to the trial court's findings. On our de novo review, we find that the plaintiff's award is capped at six (6) times the medical impairment rating, or thirty (30) percent permanent partial disability. The plaintiff is a relatively young woman with only a five (5) percent anatomical impairment rating. Dr. Neblett testified that the plaintiff's use of her hands and arms was unlimited, with the exception of lifting weight over twenty-five (25) pounds. The vocational expert, Dr. Kennon, testified that jobs, such as cashiering or light production work, would be compatible with the plaintiff's medical restrictions. In fact, at the time of trial, the plaintiff was working in a sedentary position with her previous employer. However, because the plaintiff has such limited reading and writing skills, as well as limited job experience consisting mainly of production positions that require bending, stooping, pulling, and lifting, we find that the plaintiff is entitled to the maximum award of six (6) times the anatomical impairment rating. A vocational disability rating is not based on whether the plaintiff is currently working, but to what extent the employee's earning capacity in the labor market has been diminished by the work-related impairment. Perry v. City of Knoxville, 826 S.W.2d 114, 116 (Tenn. 1991). Dr. Kennon testified that the plaintiff's disability restricted her from 39.4 percent of available jobs in the national labor force. We believe the maximum award of thirty (30) percent permanent partial disability is warranted in this case.
The trial court's judgment is affirmed in part, reversed in part, and modified. The costs of this appeal are taxed to the defendant.
L. T. LAFFERTY, SENIOR JUDGE
CONCUR:
JANICE M. HOLDER, JUSTICE
F. LLOYD TATUM, SENIOR JUDGE
JUDGMENT ORDER
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 will be paid by Defendant, for which execution may issue if necessary.
IT IS SO ORDERED this 20th day of December, 1999.
PER CURIAM
|