              IN THE SUPREME COURT OF TENNESSEE
        SPECIAL WORKERS’ COMPENSATION APPEALS PANEL
                         AT NASHVILLE
                              November 25, 2013 Session

LARRY O. EVANS v. FIDELITY & GUARANTY INSURANCE COMPANY
                            ET AL.

                 Appeal from the Chancery Court for Coffee County
                    No. 2012CV126     L. Craig Johnson, Judge




               No. M2013-00763-WC-R3-WC - Mailed March 12, 2014
                               Filed April 16, 2014

An employee sustained a compensable injury. The trial court ruled that the employee’s
partial disability award should be apportioned to the arm. The employee has appealed,
asserting that the award should have been apportioned to his thumb. The appeal has been
referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of
findings of fact and conclusions of law in accordance with Tennessee Supreme Court Rule
51. We affirm the judgment.

 Tenn. Code Ann. § 50-6-225(e) (2008 & Supp. 2012) Appeal as of Right; Judgment
                        of the Chancery Court Affirmed

P AUL G. S UMMERS, S R. J., delivered the opinion of the Court, in which S HARON G. L EE, J.
and D ONALD P. H ARRIS, S P. J., joined.

Barry H. Medley, McMinnville, Tennessee, for the appellant, Larry O. Evans.

Timothy Pirtle, McMinnville, Tennessee, for the appellees, Fidelity & Guaranty Insurance
Company and Batesville Logistics, Inc.

                                        OPINION

                          Factual and Procedural Background

       Larry Evans (“Employee”) worked at Batesville Casket Company (“Employer”) from
1977 through the date of the trial of this matter. It is not disputed that Employee sustained
a compensable injury involving his right thumb. The parties were unable to resolve their
differences at a Benefit Review Conference, and this action was filed in the Chancery Court
for Coffee County on April 2, 2012.

        At trial, Employee testified that he was sixty-five years old, had completed the tenth
grade, and had no additional education or specialized training. He began having problems
with his arms and hands in 2005. His problems worsened in March 2009, and he was
referred to Dr. David Martin, a plastic surgeon specializing in the treatment of hand
problems. Dr. Martin first saw Employee on May 28, 2009. His initial diagnosis was
bilateral carpal tunnel syndrome. Dr. Martin noted some signs of basal joint arthritis1 at that
time. However, his primary concern was treatment of the carpal tunnel syndrome, and he
performed carpal tunnel release surgery on both of Employee’s arms in June and August of
2009. A settlement of Employee’s workers’ compensation claim for that condition was
approved by the trial court on July 16, 2010.

       Employee began noticing problems with his right thumb shortly after his carpal tunnel
surgeries. When his right thumb condition worsened, he reported it to Employer and was
referred to Dr. Martin for further evaluation. Dr. Martin’s diagnosis was “advanced
triggering of the right thumb” and described triggering as follows:

                Triggering, trigger thumb, or trigger finger, develops due to
                irritation where that tendon passes under a band of tissue, a tight
                band of tissue. And although it normally acts as a pulley, in
                some instances the movement of the tendon rubs on and irritates
                this small band or a belt over the tendon. When that happens,
                patients get triggering, which is the snapping and popping of the
                finger, when the finger moves, but they can also get swelling of
                that band or even a small fluid filled cyst or sack that is a
                response to the inflammation. Sometimes that nodule or cyst is
                the primary thing the patient is concerned about. So they will
                have identified a tender lump or bump where that tendon is
                passing under the pulley and have fewer symptoms of actual
                triggering.

      Dr. Martin performed a local steroid injection on the thumb, but this provided only
temporary relief. He, therefore, recommended a surgical procedure to release the
thumb. That surgery was performed on July 6, 2010. Employee’s recovery was slower than


        1
          Dr. Martin described basal joint arthritis as “the deterioration, or wearing down of the cartilage
between the metacarpal, or bone in the hand, with one of the wrist bones called the trapezium. This occurs
at the bottom of the thumb near the wrist. It causes pain with grasping activities.”

                                                    -2-
anticipated. By November 4, 2010, he was unable to fully flex or bend the thumb. Dr.
Martin believed that this was caused by the formation of scar tissue at the surgical site. On
November 12, 2010, Dr. Martin performed a tenolysis, a surgical procedure to free the
tendon from the scar tissue.

       The incision of the second surgery was slow to heal. By January 13, 2011, the
incision had fully healed. Employee, however, still “could not achieve forceful flexion or
motion of the thumb itself and had difficulty in extending the thumb fully[.]” Employee was
permitted to return to work on a gradual basis. He continued to have difficulty moving his
thumb. Dr. Martin concluded that additional scar tissue had developed at the site of the two
surgeries. He recommended that Employee seek a second opinion concerning future
treatment. Employee saw Dr. Kyle Joyner, an orthopaedic surgeon in Murfreesboro, who
discussed several possible additional procedures with Employee and Dr. Martin. Employee
eventually decided against any additional surgeries. Dr. Martin considered this to be a
reasonable decision.

       Dr. Martin found Employee to be at maximum medical improvement on April 28,
2011. He assigned a permanent impairment rating of 18% of the right thumb. That rating
is equivalent to 8% to the hand, 7% to the arm or 4% to the body as a whole. The
impairment rating was based upon diminished range of motion in two joints of the
thumb. He placed no formal restrictions on Employee’s activities. He acknowledged that
Employee’s condition would cause him to have pain with grasping activities.

        During direct examination by Employee’s counsel, Dr. Martin stated, “It is an injury
confined to the right thumb, though it does have impact on the overall use of his hand
without a doubt.” During cross-examination, he stated that Employee had swelling and
tenderness at the basal joint of the wrist, which is the point where the thumb joins the
wrist. Dr. Martin further testified that the “friction point” for the triggering of Employee’s
right thumb was “directly at the point where the thumb attaches to the rest of the hand or in
the crease -- right below the crease where the thumb attaches to the hand.” During redirect
examination, he agreed that the injury “may affect other body parts, but . . . is in fact limited
to the right thumb.”

      Employee testified that he continued to work in the same job he had held since 2001
and was able to perform all aspects of the job. He was able to grip objects with his right
hand using his fingers only. He could not use his thumb to hold a pencil or screwdriver. He
expressed the opinion that he had lost all use of his right thumb.

      The trial court took the matter under advisement and issued a written decision on
January 24, 2013. The trial court found that Employee’s injury should be apportioned to the
arm. In accordance with Tennessee Code Annotated section 50-6-241(d)(1)(A), the award

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of permanent partial disability benefits was, therefore, limited to one and one-half times the
anatomical impairment. The court awarded 10.5% permanent partial disability to the right
arm. Judgment was entered in accordance with those findings, and Employee has appealed.

                                          Analysis

        Employee contends that the evidence preponderates against the trial court’s finding
that his injury should be assigned to the arm, and thus subject to the one and one-half times
impairment “cap,” rather than to the thumb, which is not subject to the cap. At the outset,
we note that our standard of review of issues of fact is de novo upon the record of the trial
court accompanied by a presumption of correctness of the findings, unless the preponderance
of evidence is otherwise. Tenn. Code Ann. § 50-6-225(e)(2) (2008 & Supp. 2012). When
credibility and weight to be given testimony are involved, considerable deference is given
to the trial court when the trial judge had the opportunity to observe the witness’s demeanor
and hear in-court testimony. Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315 (Tenn.
1987). A reviewing court, however, may draw its own conclusions about the weight and
credibility to be given to expert testimony when all of the medical proof is by
deposition. Krick v. City of Lawrenceburg, 945 S.W.2d 709, 712 (Tenn. 1997); Landers v.
Fireman’s Fund Ins. Co., 775 S.W.2d 355, 356 (Tenn. 1989). A trial court’s conclusions of
law are reviewed de novo upon the record with no presumption of correctness. Ridings v.
Ralph M. Parsons Co., 914 S.W.2d 79, 80 (Tenn. 1996).

       Employee relies largely upon Dr. Martin’s statement that his injury was “confined to
the thumb” in support of his position in this appeal. He concedes that the injury affects the
function of the hand as a whole. However, he notes that the Tennessee Supreme Court has
held that an award for an injury to a particular scheduled member should be limited to that
member absent “some unusual and extraordinary condition affecting some other
member . . . as a result of the injury to the scheduled member.” Jeffrey Mfg. Co. of Tenn. v.
Underwood, 426 S.W.2d 189, 191 (Tenn. 1968) (citing Ottens v. Western Contracting Co.,
296 N.W. 431 (Neb. 1941); see also, Adams Const. Co. v. Cantrell, 263 S.W.2d 516, 517
(Tenn. 1953); Sharp v. Protective Apparel Corp., No. 03S01-9301-CV-00004, 1994 WL
901489 (Tenn. Workers’ Comp. Panel Feb. 8, 1994).

       Dr. Martin testified that the injury had “an impact on the overall use of [Employee’s]
hand,” and, more importantly, that the site of the anatomical flaw that caused the problem
was “directly at the point where the thumb attaches to the rest of the hand or in the crease --
right below the crease where the thumb attaches to the hand.” The trial court relied on that
testimony in reaching its decision.

       This Panel has recently addressed the issue of choosing between scheduled members
for apportionment of permanent partial disability in Schering Plough Healthcare Prod., Inc.

                                              -4-
v. Plumley, No. E2009-01130-WC-R3-WC, 2010 Tenn. LEXIS 884 (Tenn. Workers’ Comp.
Panel Sept. 22, 2010). In that case the issue presented was whether the employee’s injury
should be apportioned to his foot or to his leg. We noted:

                 Our Supreme Court has acknowledged the difficulty in
          determining to which scheduled member an injury should be attributed
          when there is a close connection between two scheduled
          members. Usually the injury will be attributed to “the greater.” Onley
          v. Nat’l Union Fire Ins. Co., 785 S.W.2d 348, 350 (Tenn. 1990) (citing
          Camis v. Indus. Comm’n, 4 Ariz. App. 312, 420 P.2d 35 (Ariz. Ct. App.
          1966)).

                 In a case prior to Onley, the Court was faced with a dispute as
          to whether an injury was to the body as a whole, to the leg, or to the
          foot. While the Court concentrated on the issue related to the body as
          a whole, it did make an observation as to what principle should govern
          the issue as between the leg and foot (both scheduled
          members). “Nonetheless, there is no question that he has a substantial
          permanent partial disability to the right foot and the right leg. Since the
          scheduled injury for impairment of a leg exceeds that for impairment
          of the foot, the schedule for the greater impairment is
          applicable.” Reagan v. Tenn. Mun. League, 751 S.W.2d 842, 843
          (Tenn. 1988) (citations omitted).

                  Thomas Reynolds, in his treatise on Tennessee workers’
          compensation law, observes that when determining the priority of an
          award between scheduled members, it should go to “the paramount
          member.” See Reynolds, 20 Tennessee Practice Tennessee Workers’
          Compensation Practice and Procedure with Forms § 14:6 (6th ed.
          2005). He then observes that “if the paramount member is not affected,
          the award must be based on the lesser member.” Id. § 14:6 n.12. The
          treatise contains this comment: “When the employee injured his right
          foot and his right leg, the maximum award is for the loss of or partial
          loss of use of the paramount member, the leg.” Id. § 14:6 (citing
          Reagan, 751 S.W.2d at 842). As Reynolds points out, this is merely the
          application of the concurrent injury rule to connected scheduled
          members. Id.

2010 Tenn. LEXIS 881 at *7-*9.



                                             -5-
         Dr. Martin, the only physician to testify in this case, stated that the site of the tendon
irritation that caused Employee’s trigger thumb was located at the point where his thumb
joined his wrist. For purposes of the workers’ compensation law, the wrist is considered to
be part of the arm. See, e.g., Tacle Seating USA, LLC v. Vaughn, No. M2009-02418-WC-
R3-WC, 2010 WL 4103694 (Tenn. Workers’ Comp. Panel Oct. 19, 2010). Following the
rule set out by the Tennessee Supreme Court in Onley, and restated by this Panel in Plumley,
we conclude that the trial court correctly chose to apportion Employee’s injury to the arm.


                                          Conclusion

       The judgment of the trial court is affirmed. Costs are taxed to Larry Evans and his
surety, for which execution may issue if necessary.




                                                      ________________________________
                                                      P AUL G. S UMMERS, S ENIOR J UDGE




                                                -6-
              IN THE SUPREME COURT OF TENNESSEE
        SPECIAL WORKERS' COMPENSATION APPEALS PANEL
                         AT NASHVILLE

       LARRY O. EVANS v. FIDELITY & GUARANTY INSURANCE
                        COMPANY ET AL.

                          Chancery Court for Coffee County
                                  No. 2012CV126


                 No. M2013-00763-WC-R3-WC - Filed April 16, 2014


                                      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 will be paid by Larry Evans and his surety, for which execution may issue if
necessary.


                                                  PER CURIAM




                                            -7-
