Ivey v. Trans Global Gas & Oil ( 1999 )

IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE FILED
September 13, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
CAROLYN SUE IVEY, )
) FOR PUBLICATION
Plaintiff/Appellant )
) FILED: September 13, 1999
v. )
) KNOX CHANCERY
TRANS GLOBAL GAS & OIL, )
d/b/a BREAD BOX FOOD STORE, ) Hon. Frederick D. McDonald
STORE NO. 42, )
) No. 03S01-9804-CH-00037
Defendant/Appellee. )
) (Workers’ Compensation)
)
For the Appellant: For the Appellee:
David H. Dunaway Imogene A. King
Dunaway & Associates Frantz, McConnell & Seymour, LLP
LaFollette, Tennessee Knoxville, Tennessee
OPINION
REVERSED IN PART; BARKER, J.
AFFIRMED AS MODIFIED IN PART
OPINION
In this workers’ compensation action, the employee, Carolyn Sue Ivey (plaintiff),
filed a claim for relief based upon a chronic mental disorder that arose after she was
robbed at gunpoint while working at a convenience store. The trial court found that
the plaintiff is permanently and totally disabled, as defined in Tenn. Code Ann. § 50-6-
207(4)(B) (Supp. 1998), and awarded benefits to be paid until the plaintiff reaches the
age of sixty-five.
The employer, Trans Global Gas & Oil, Inc. (defendant), appealed the trial
court’s decision to the Special Workers’ Compensation Appeals Panel for findings of
fact and conclusions of law pursuant to Tenn. Code Ann. § 50-6-225(e)(5) (Supp.
1998). The Panel affirmed the trial court’s finding that the plaintiff is permanently and
totally disabled, but determined that the plaintiff’s injury pertains to her mental faculties
as enumerated at Tenn. Code Ann. § 50-6-207(3)(A)(ff). Under that statute, the Panel
concluded that the plaintiff is entitled to recover benefits for the scheduled period of
four hundred weeks.
The plaintiff, thereafter, filed a motion for full-court review of the Panel’s
decision pursuant to Tenn. Code Ann. § 50-6-225(e)(5)(B). We granted the appeal to
address whether the plaintiff’s injury pertains to a scheduled member under Tenn.
Code Ann. § 50-6-207(3)(A)(ff) and whether she is permanently and totally disabled as
defined at Tenn. Code Ann. § 50-6-207(4)(B). For the reasons that follow, we
conclude that the plaintiff’s injury falls within the schedule for mental faculty injuries at
section 207(3)(A)(ff). Accordingly, both the trial court and the Panel erred in adjudging
the plaintiff as permanently and totally disabled. The judgments of the trial court and
the Panel are reversed in that respect.
2
We affirm the Panel’s decision to treat the plaintiff’s mental disorder as a
scheduled-member injury under section 207(3)(A)(ff). However, because the plaintiff
has not suffered a total loss of her mental faculties, as provided in section
207(3)(A)(ff), we find that she is not entitled to recover benefits for the maximum four
hundred week period. Based upon the evidence in this case, we modify the plaintiff’s
recovery to three hundred weeks.
BACKGROUND
The plaintiff was thirty-nine years old at the time of trial and had been employed
at the defendant’s Bread Box Food Store since 1994. Initially, she worked as a clerk
operating the convenience store’s cash register, stocking food shelves, and cleaning
the store property. After approximately one year, she was promoted to the position of
assistant manager on the 2:30 p.m. to 11:00 p.m. shift. Her work duties remained
essentially the same except that she became responsible for paper work, bank
deposits, and keys to the store.
On April 3, 1996, while working alone at the store, the plaintiff was robbed by a
female assailant who pointed a cocked handgun directly in her face. The plaintiff
complied with the assailant’s demands and did not suffer any physical injury during the
robbery. Since that time, however, the plaintiff has complained of chronic emotional
problems including stress, anxiety, and depression. She has expressed a constant
fear that the assailant will return to kill her and is afraid to leave her house unless
accompanied by friends or relatives. She also has difficulty concentrating and thinking
clearly when around large groups of people and is reluctant to interact with strangers.
Although the defendant has offered her several employment opportunities since the
3
robbery, she has not engaged in any gainful employment aside from babysitting a
relative’s child in her home for fifty dollars a week.
Approximately one week after the robbery, the plaintiff was referred to Dr.
Kelley Walker for psychiatric treatment and evaluation.1 Dr. Walker became the
plaintiff’s primary treating physician between April 11, 1996, and the trial date on
December 10, 1997. Dr. Walker testified in her deposition that she initially diagnosed
the plaintiff as suffering from an acute adjustment disorder with anxiety. Through both
medicine and counseling, she had expected the plaintiff to recover from the emotional
trauma and to return to work eventually.
As part of the initial treatment, Dr. Walker encouraged the plaintiff to seek
psychotherapy from a list of recommended psychologists. 2 Dr. Walker testified that
psychotherapy offered a potential benefit to the plaintiff during the early acute stages
of her emotional injury. The record reflects that the plaintiff went to two psychotherapy
sessions under the care of a Dr. Slaven3 in April and May of 1996. The plaintiff
declined further treatment by Dr. Slaven and told Dr. Walker that the sessions with Dr.
Slaven made her feel stupid. Dr. Walker urged the plaintiff to obtain psychotherapy
from other psychologists and recommended that she see Dr. Denise Tope. Despite
Dr. Walker’s advice, the plaintiff did not pursue additional psychotherapy. 4
1
The p laintiff was re ferred to D r. W alker by D r. John L aw, a fam ily-practice ph ysician at St.
Mary’s Walk-in Clinic in East Towne. Dr. Walker is a board-certified psychiatrist with the Center for
Fam ily Psychiatry in Kno xville.
2
Black’s Law Dictionary 1227 (6 th ed. 199 0) define s psycho therapy as :
[a] m etho d or s ystem of alle viating or cu ring c ertain form s of d isea se, p articu larly
diseases of the nervous system or such as are traceable to nervous disorders, by
suggestion, persuasion, encouragement, the inspiration of hope or confidence, the
discouragement of morbid memories, associations or beliefs, and other similar means
addressed to the mental state of the patient, without (or sometimes in conjunction with)
the administration of drugs or other physical remedies.
3
Dr. S laven ’s full n am e and qualif icatio ns w ere n ot inc luded in the r eco rd on appe al.
4
The evidence is in dispute as to why the plaintiff did not receive further psychotherapy. Some
proof ind icates tha t the plaintiff wa s reluctan t to mee t and to de velop relation ships w ith new co unselor s.
However, the plaintiff contends that the lapse in therapy was due to a lack of financial support from the
4
The plaintiff’s treatment consisted primarily of medicine and psychiatric
counseling from Dr. Walker. Dr. W alker prescribed various anti-depressant and anti-
anxiety medications for the plaintiff and monitored her condition during their meetings.
After several months of evaluation, Dr. Walker noted that the plaintiff’s symptoms
were becoming chronic. Those symptoms included intense paranoia when in public
areas, fear of strangers and crowded places, difficulty sleeping and relaxing,
occasional flashbacks and anxiety attacks, and feelings of hopelessness and
depression. Dr. Walker opined that the plaintiff’s symptoms were all related to the
trauma that she experienced from the robbery. Because those symptoms persisted,
Dr. Walker ultimately diagnosed the plaintiff with posttraumatic stress disorder.
Dr. Walker testified that during the early stages of the plaintiff’s disorder, she
encouraged the plaintiff to return to some type of gainful employment.5 Dr. Walker
opined at that time that subsequent employment would help the plaintiff to rebuild her
self-esteem and would instill productivity back into her life. With the assistance of
Jane Colvin-Roberson, a case manager hired by the defendant, Dr. Walker discussed
options for the plaintiff’s gradual return to the work force. The defendant offered the
plaintiff several employment options during the summer and fall of 1996, including her
previous position at the Bread Box Food Store, similar positions at other nearby
convenience stores owned by the defendant, and a position with one of the
defendant’s larger grocery stores.6 The plaintiff also considered working in maid
defendant and the failure of her case m anager, Jane Colvin-Robe rson, to facilitate the necessary
insurance coverage. Ms. Colvin-Roberson testified at trial that she would have supported and made
arrangements for the psychotherapy treatment had she known it was recommended by Dr. Walker. The
trial court did not find any party at fault in the plaintiff’s failure to receive psychotherapy. The evidence
does n ot prepo nderate against th at finding.
5
Dr. Walker released the plaintiff for work on July 16, 1996. Approximately one week later, the
defendant terminated the plaintiff’s temporary total disability benefits.
6
The defendant’s operation manager, Kenneth Raby, testified at trial that the plaintiff was a good
emp loyee. Mr. R aby stated that in light of the plaintiff’s work history with the defend ant, he wa nted her to
return to w ork in on e of the de fendan t’s store loca tions.
5
service for a motel as she had previously done. Nevertheless, she did not return to
any form of employment except a part-time babysitting job.
On January 16, 1997, Dr. Walker reported to Ms. Colvin-Roberson that the
plaintiff had reached maximum medical improvement. Dr. Walker opined that the
plaintiff still suffered from post traumatic stress disorder with a moderate permanent
clinical impairment. Due to the plaintiff’s chronic anxiety and fear of public places, Dr.
Walker changed her initial opinion concerning the plaintiff’s ability to work. Dr. Walker
testified that based upon her most recent evaluations of the plaintiff in the Fall of
1997, she believed that the plaintiff would not be able to sustain meaningful
employment outside her home.7
Dr. Walker’s opinion was corroborated by Dr. Jerry B. Lemler, 8 who examined
the plaintiff at the request of plaintiff’s counsel. Dr. Lemler conducted a ninety-minute
interview of the plaintiff on April 15, 1997. Based upon his evaluation and the initial
patient report from Dr. Walker, Dr. Lemler diagnosed the plaintiff with post traumatic
stress disorder. He characterized her condition as “moderate” under the fourth edition
of the American Medical Association (AMA) guidelines, indicating that the plaintiff has
some, but not all, useful functioning. Dr. Lemler testified in his deposition that the
plaintiff’s high anxiety level inhibits her ability to focus and to engage in meaningful
social interaction. As related to employment, Dr. Lemler opined that the plaintiff would
be unable to concentrate for any sustained periods of time and would be unable to
7
Dr. W alker testified that the plaintiff’s emotional condition worsened during the m onth before
the scheduled trial date. Dr. Walker stated that the plaintiff’s increased stress level could have been
due , in par t, to the pend ing tria l proc eed ings . W hile sh e not ed th at the plaint iff’s c ond ition w ould
probably improve after trial, she reiterated that the plaintiff would not be able to maintain a consistent
work s chedu le at that tim e or in the fo reseea ble future.
8
Dr. Lemler is a full-time family practitioner at the Family Medical Clinic in Harrogate,
Tenn essee . He also p ractices psychiatry on a part-tim e basis fr om h is hom e in Lafollette .
6
tolerate ordinary work stresses outside of her home. He concluded that the plaintiff
could not engage in gainful employment on a consistent basis.
Over the objection of the defendant’s counsel, both Dr. Lemler and Dr. Walker
assessed the plaintiff’s mental impairment at fifty percent to the body as a whole. The
impairment rating came from an outdated second edition of the AMA guidelines. Both
doctors acknowledged that under the current fourth edition of the AMA guidelines,
there is no scientifically accepted method for assigning a percentage of impairment to
emotional injuries. The fourth edition of the AMA guidelines cautions that the use of
percentages for psychological impairments is highly subjective. Nevertheless, both
doctors relied upon the second edition of the AMA guidelines, at the request of
plaintiff’s counsel, to assign a percentage of impairment. The doctors opined that the
plaintiff’s impairment will most likely persist for the remainder of her life.
Dr. Norman Hankins, a vocational expert, testified by deposition that he
evaluated the plaintiff on two separate occasions to assess any vocational disability.
Dr. Hankins first interviewed the plaintiff on March 26, 1997. He examined the
plaintiff’s emotional condition, employment history,9 and the initial patient report from
Dr. Walker. He found that the plaintiff had no special or transferable vocational skills
and that she had been working in manual labor most of her life. He also found that
the plaintiff had quit high school after the tenth grade and had never obtained a GED
or further education. Dr. Hankins testified that the plaintiff had an average ability to
learn and an IQ in the “average” range; however, he assessed her reading and
mathematical skills as generally poor for her age. Based upon his findings from the
first interview, he rated the plaintiff as forty-eight percent vocationally impaired.
9
The plaintiff’s employment history includes: school janitorial service; spinning machine
operations for the Standard Knitting Mills; motel maid service; restaurant food preparation; meat
pack ing; and w ork at the defend ant’s Bre ad Box Food S tore.
7
Dr. Hankins reevaluated the plaintiff on December 4, 1997. During the second
evaluation, he relied upon the depositions of Dr. Walker and Dr. Lemler and found that
the plaintiff’s emotional problems had intensified. Dr. Hankins opined that the plaintiff
suffered from anxiety and other conditions that would severely limit her ability to
perform in gainful employment. He, therefore, concluded that the plaintiff was one
hundred percent vocationally impaired.
The trial court reviewed the above evidence and concluded that the plaintiff is
permanently and totally disabled. Tenn. Code Ann. § 50-6-207(4)(B) (Supp. 1998).
The trial court determined that the plaintiff’s baby-sitting activity constituted three
percent vocational ability, but that the plaintiff is nevertheless totally disabled due to
her inability to work in the general market place. The Special Workers’ Compensation
Appeals Panel affirmed the trial court’s finding of permanent total disability, but
concluded that the plaintiff’s recovery should be limited to four hundred weeks under
the schedule for mental faculty injuries. See Tenn. Code Ann. § 50-6-207(3)(A)(ff).
The plaintiff requests this Court to reverse the Panel’s decision and to reinstate the
judgment of the trial court.
DISCUSSION
The questions in this appeal are the extent of the plaintiff’s vocational disability
and whether her injury is to a scheduled member under Tenn. Code Ann. § 50-6-
207(3)(A)(ff). The extent of a vocational disability is a question of fact that we review
de novo with a presumption of correctness. Tenn. Code Ann. § 50-6-225(e)(2);
Collins v. Howmet Corp., 970 S.W.2d 941, 943 (Tenn. 1998). We are not bound by
the trial court’s factual findings, but rather examine those findings independently to
determine where the preponderance of the evidence lies. Id. at 943; Galloway v.
8
Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). This case also involves
questions of law pertaining to the construction of the workers’ compensation statutes
and the application of the law to the facts. Our review in that regard is de novo without
a presumption of correctness. Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn.
1997); Spencer v. Towson Moving and Storage, 922 S.W.2d 508, 509 (Tenn. 1996).
The Workers’ Compensation Act classifies vocational disabilities into four
distinct categories, with each category serving a specific compensation goal. Davis v.
Reagan, 951 S.W.2d 766, 767 (Tenn. 1997); Roberson v. Loretto Casket Co., 722
S.W.2d 380, 383 (Tenn. 1986). Those categories are: (1) temporary total disabilities;
(2) temporary partial disabilities; (3) permanent partial disabilities; and (4) permanent
total disabilities. Tenn. Code Ann. § 50-6-207(1) -- 207(4) (Supp. 1998). In this case,
we are concerned with the interrelation between permanent total disabilities and the
schedule of injuries listed within the statute governing permanent partial disabilities.
The plaintiff received temporary total disability benefits from the defendant until
she was released by Dr. Walker to return to work on July 16, 1996. At the conclusion
of trial, the trial court awarded benefits to the plaintiff for a permanent total disability
based upon the testimony of the plaintiff’s psychiatrists and a vocational expert. The
defendant did not present any evidence to refute the testimony of the plaintiff’s
experts. While the evidence would ordinarily be sufficient to affirm the trial court’s
finding of permanent total disability, our analysis in this case is complicated by the
schedule of injuries under Tenn. Code Ann. § 50-6-207(3)(A)(a)-(ff).
Tenn. Code Ann. § 50-6-207(3)(A) governs recovery for permanent partial
disabilities and contains the list of scheduled-member injuries. This Court has
previously interpreted section 207(3)(A) as follows: “[A]n employee sustaining either a
disability to a scheduled member or a disability adjudged both permanent and partial
9
to the body as a whole may be eligible for permanent partial disability benefits.”
Davis, 951 S.W.2d at 767. Benefits for permanent partial disabilities are paid either
as scheduled or for a period of time up to four hundred weeks. Tenn. Code Ann. §
50-6-207(3)(A) -- 207(3)(F).
The Panel reviewed the schedule of injuries under section 207(3)(A) and
determined that the plaintiff’s injury fell within the schedule at section 207(3)(A)(ff).
That section reads, “[f]or the total and permanent loss of the sight of both eyes, or the
loss of both arms at the shoulder, or complete and permanent paralysis, or total and
permanent loss of mental faculties, sixty-six and two-thirds percent (66 2/3%) of the
average weekly wages during four hundred (400) weeks.” Tenn. Code Ann. § 50-6-
207(3)(A)(ff) (emphasis added). We agree with the Panel’s decision to treat the
plaintiff’s injury as one pertaining to mental faculties under section 207(3)(A)(ff).
Although this Court has previously upheld workers’ compensation benefits for
mental injuries,10 the question of whether those injuries are scheduled under section
207(3)(A)(ff) appears to be one of first impression. The term “mental faculties” is not
defined in the workers’ compensation statutes. However, the words “mental” and
“faculties” are defined separately in Black’s Law Dictionary (6th ed. 1990). The word
“mental” refers to the mind and includes factors such as cognition, intellect, and
emotions, as distinguished from the physical body. Id. at 985. The word “faculties”
means abilities and powers to perform certain acts and functions. Id. at 593.
10
See Hill v. Eagle Bend Mfg., Inc., 942 S.W .2d 483, 488 (Tenn. 1997 ) (allowing recovery for a
men tal disorde r that aros e out of a p hysical wor k-related injury); Beck v. State , 779 S.W.2d 367, 370
(Tenn. 1989) (allowing recovery where an employee was sexually accosted by a stranger in the course
of em ployme nt). Gen erally, a me ntal injury is com pensa ble unde r worke rs’ com pensa tion when it results
from a physical, work-related injury or is caused by an identifiable stressful, work-related event
produc ing a sud den m ental stim ulus suc h as frigh t, shock , or exce ssive un expec ted anx iety. See Gat lin
v. City o f Kno xville , 822 S.W .2d 587, 5 91-92 (T enn. 199 1); Jose v. Equifex, Inc., 556 S.W.2d 82, 83-84
(Te nn. 1 977 ). Th e par ties in this c ase do no t disp ute th at the plaint iff’s m enta l injury is com pen sab le
under th e work ers’ com pensa tion laws.
10
Relying on those definitions, we conclude that the mental faculties schedule
under section 207(3)(A)(ff) was intended to encompass two basic types of injuries.
The first type involves mental impairment that results from physical trauma to the
brain. An example of this type of injury is where an employee suffers a physical blow
to the head, causing a brain injury, while performing a work-related task. With the
assistance of expert medical and psychological testimony, the employee can
demonstrate the extent of brain damage and how that damage has decreased his or
her ability to think and to perform mental operations. The employee’s claim for
workers’ compensation benefits would be based, at least in part, on the degree of
impaired cognitive functioning.
The second type of mental faculties injury under section 207(3)(A)(ff) involves a
mental or emotional disorder that results from a non-physical injury. As this Court has
previously discussed in Gatlin, injuries that are completely mental in nature are
compensable under workers’ compensation when they are caused by an identifiable
stressful, work-related event that produces a sudden mental stimulus such as fright,
shock, or excessive unexpected anxiety. See 822 S.W.2d at 591-92. The absence of
physical harm or physical trauma does not lessen the possible effects that such
injuries can have on both cognitive and vocational abilities.
In this case, for example, the plaintiff’s experience from the robbery has
severally damaged her emotional well-being and has dominated the way she thinks
and conducts herself in public places. Although some evidence indicates that the
plaintiff has retained a significant amount of her cognitive functioning, 11 the evidence
also shows that her emotional injury has left her in a state of constant anxiety and has
11
The record shows that the plaintiff has maintained relationships with her family and has been
able to drive her daughter to and from sc hool. She has also provided baby-sitting services for a
relative’s child without any apparent complication.
11
prevented her from thinking rationally about many human interactions. The plaintiff’s
psychiatrists conducted several standardized tests on the plaintiff to assess the
severity of her mental impairment. Both rated the plaintiff’s mental injury as
“moderate” and testified that her cognitive functioning was below average as a result
of the post traumatic stress disorder. 12 Based upon the expert proof, we conclude that
the plaintiff’s injury is completely related to her mental faculties and should be
adjudicated under section 207(3)(A)(ff).
The remaining question is whether the lower courts properly held that the
plaintiff is permanently and totally disabled. Permanent total disability is defined at
Tenn. Code Ann. § 50-6-207(4)(B) in pertinent part, “[w]hen an injury not otherwise
specifically provided for in this chapter, as amended, totally incapacitates the
employee from working at an occupation that brings such employee an income, such
employee shall be considered “totally disabled,” and for such disability compensation
shall be paid as provided in subdivision (4)(A) . . . .” Benefits for permanent total
disabilities are to be paid by the employer until the employee reaches the age of sixty
five. Tenn. Code Ann. § 50-6-207(4)(A)(i).
The plaintiff contends that she is permanently and totally disabled under
section 207(4)(B) based upon the trial court’s finding that she is unable to return to
gainful employment. However, because her injury pertains to a scheduled member
under section 207(3)(A)(ff), we conclude that her vocational disability cannot be
adjudged as permanent and total under the workers’ compensation laws. This Court
has previously held that where an employee’s only injury is to a scheduled member,
he or she may receive only the amount of compensation provided for in the statutory
12
As part of their evaluation, both psychiatrists analyzed the plaintiff’s mental injury under the
Global Assessment of Function (GAF) scale. The GAF ranks mental functioning on a scale of 0-100,
with the range of 0 to 30 being catatonic or near death and the sc ore of 90 or greater being m anic. Dr.
Walker rated the plaintiff at 45 and Dr. Lemler rated her at 50 to 55, all below the average range of 60-
70.
12
schedule. See Wade v. Aetna Cas. and Sur. Co., 735 S.W.2d 215, 217 (Tenn. 1987).
In those cases, the courts are not free to assess the employee’s disability in terms of
the body as a whole unless the injuries at issue are not specifically enumerated as
scheduled members. Smith v. Empire Pencil Co., 781 S.W.2d 833, 837 (Tenn. 1989);
Blackburn v. Allied Chem. Corp., 616 S.W.2d 600, 602 (Tenn. 1981); Genesco, Inc. v.
Creamer, 584 S.W.2d 191, 194 (Tenn. 1979). Therefore, we conclude that the Panel
erred in affirming the trial court’s finding of permanent and total disability.
From our research of the workers’ compensation statutes, it is clear that the
legislature, at one time, permitted the recovery of total disability benefits for mental
faculty injuries. See Code 1932, § 6878(e). The definition of total disability, before it
was amended, read as follows:
The total and permanent loss of the sight of both eyes, or the loss of
both arms at the shoulder, or complete and permanent paralysis, or total
and permanent loss of mental faculties, or any other injury which totally
incapacitates the employee from working at an occupation which brings
him an income, shall constitute total disability.
Code 1932, § 6878(e). In 1941, the legislature amended the definition of total
disability and moved the language in section 6878 into the statute governing
permanent partial disabilities. 1941 Tenn. Pub. Acts, ch. 90, § 5(c). The injuries listed
in section 6878 were included in the schedule of injuries similar to the scheme
provided under the current workers’ compensation law. Compare 1950 Code Supp., §
6878(c) with Tenn. Code Ann. § 50-6-207(3)(A)(ff). The legislative history concerning
the amendments is not available.
Wisely or unwisely, the legislature has determined that injuries to an
employee’s mental faculties constitute scheduled-member injuries under the statute
for permanent partial disabilities. It is not within the courts’ authority to question or
13
judge the wisdom of the statute. Harrison v. Schrader, 569 S.W.2d 822, 828 (Tenn.
1978); State ex rel. Motlow v. Clark, 173 Tenn. 81, 114 S.W.2d 800, 803 (Tenn.
1938); Hamblen County Educ. Ass’n v. Hamblen County Bd. of Educ., 892 S.W.2d
428, 432 (Tenn. App. 1994), perm. app. denied (Tenn. 1995). Were we to adopt the
plaintiff’s position and adjudge her as permanently and totally disabled, we would
completely emasculate the language and intent of the statutory schedule.13
APPLICATION
Under the unique facts of this case, there is no dispute that the plaintiff has
suffered a work-related mental injury that has caused her emotional suffering and has
severely diminished her ability to work. However, our legislature has set a high
standard for the recovery of benefits under the schedule for mental faculty injuries.
See Tenn. Code Ann. § 50-6-207(3)(A)(ff). The recovery schedule is capped at four
hundred weeks for employees who have totally and permanently lost their mental
faculties. The record in this case is clear that, although the plaintiff has suffered a
permanent mental injury, she has not totally lost her mental faculties. We must,
therefore, conduct a de novo review of the record to determine the appropriate
duration of the plaintiff’s recovery. The amount of periodic benefits to be paid to the
plaintiff has not been disputed in this appeal.
13
The plaintiff legitimately questions the fairness of limiting her recovery under section
207(3)(A)(ff) in light of her inability to return to gainful employmen t. We agree with the plaintiff that there
are possible scenarios where an employee suffers from a mental disorder, short of a total loss of mental
faculties, and is unable to return to work. Moreover, we cannot conceive of any case where an
em ployee perm ane ntly an d tota lly loses his or her m enta l facu lties, b ut is o nly par tially disa bled w ithin
the meaning of T enn. Code Ann. § 50 -6-207(3)(A). W e are also struck by the apparent unfairness o f a
worker who becomes totally and permanently disabled as a result of a back injury, for example, receiving
benefits to age 65; yet the same worker who suffers a more serious injury and is unable to work due to a
total and permanent loss of mental faculties is limited to 400 weeks of benefits. The legislature,
nevertheless, has seen fit to treat such injuries as permanent partial disabilities under the workers’
compensation statutes. Until the statute is given further address by the legislature, we must follow the
sched ule and s chem e of the s tatute and limit the plaintiff’s r ecove ry accord ingly.
14
We have thoroughly reviewed the record in this case including the extent of the
plaintiff’s injury, her age and work history, her educational background, and the
availability of any transferable work skills that she could utilize in future employment.
The plaintiff’s psychiatrists testified that the plaintiff’s mental injury was chronic and
likely to persist throughout the remainder of her life. Relying on an outdated AMA
guideline, the psychiatrists rated the plaintiff as fifty percent anatomically impaired to
the body as a whole.
On the separate question of vocational disability, the plaintiff’s expert, Dr.
Hankins, testified that the plaintiff’s mental injury prevents her from working in jobs
that require her to interact with strangers and large groups of people. Dr. Hankins
determined that the plaintiff has no specialized work skills and that her limited
education greatly reduces the opportunities that she might otherwise have in the labor
market. After reviewing the testimony of the plaintiff’s psychiatrists, Dr. Hankins
concluded that the plaintiff could not engage in employment on a sustained basis. He
did not express an opinion on the plaintiff’s baby-sitting activities.
In view of the plaintiff’s limited job training, education, considerable
psychological restrictions, and the lack of transferable job skills, we agree that her
ability to earn a living has been severely limited by her mental injury. Nevertheless,
we also acknowledge that the plaintiff has successfully worked as a part-time
babysitter and could possibly work in other capacities that accommodate her mental
disorder. Having reviewed those factors together with the remaining evidence in the
record, we conclude that the plaintiff’s percentage of vocational disability is seventy-
five percent. The duration of the plaintiff’s recovery, as provided in Tenn. Code Ann.
§ 50-6-207(3)(A)(ff) and 207(3)(D), shall be three hundred weeks.
15
Costs of this appeal shall be taxed to the plaintiff, Carolyn Sue Ivey, for which
execution shall issue if necessary.
_______________________________
WILLIAM M. BARKER, JUSTICE
CONCUR:
Anderson, C.J., Drowota, Holder, JJ.
Birch, J., not participating.
16