                   IN THE COURT OF APPEALS OF TENNESSEE
                        WESTERN SECTION AT JACKSON
______________________________________________________________________________

EILEEN SMITH,                                      Shelby Chancery No. 10615-1
                                                   C.A. No. 02A01-9701-CH-00024
       Plaintiff,
                                                   Hon. Neal Small, Judge
v.

SHELBY COUNTY GOVERNMENT,
                                                      FILED
       Defendant.
                                             September 08, 1997
DAVID A. E. LUMB, Memphis, Attorney for Plaintiff.
                                              Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk
CARROLL C. JOHNSON, Memphis, Attorney for Defendant.

AFFIRMED

Opinion filed:
______________________________________________________________________________

TOMLIN, Sr. J.

       Eileen Smith (hereafter “Plaintiff”) filed suit against Shelby County Government

(hereafter “Defendant”) in the Chancery Court of Shelby County seeking to recover

benefits for an injury she sustained while em ployed by the Shelby County Health Care

Center, a division of Defendant. Following a bench trial the chancellor found that

Plaintiff had sustained an injury that arose out of and in the course of her employment

and awarded her 60% disability to her right arm, along with additional compensation

for discretionary costs and attorney fees. Defendant has presented two issues on

appeal: W hether the trial court erred in 1) finding that Plaintiff sustained a com pensable

injury that arose in the course of her employm ent; and 2) in aw arding Plaintiff a

permanent vocational disability rating of 60% to the right arm. For the reasons

hereinafter stated, we find no error and affirm.

       The basic facts are not in dispute. Plaintiff, who had a bachelor’s degree in

social work and twenty years experience in that field, was an employee of Defendant

when she was injured. Plaintiff testified that the injury occurred when she was assisting

a resident patient of the center in removing one of several articles of clothing. During

the course of this operation the patient moved her body, causing a jerking force on her

arm. Plaintiff noticed that her wrist was swelling and reported the injury to her

supervisor. Shortly thereafter, Defendant’s in-house physician exam ined Plaintiff’s
hand and advised her to report to the emergency room, where x-rays were taken. At

that time her hand was placed in a splint, her arm placed in a sling and she was given

medication for pain. She w as advised not to return to work immediately.

       Plaintiff continued to suffer pain and cramping in her wrist. She stated that her

position as a social w orker required extensive writing. Her inability to continue to

write without pain posed a serious im pediment to her perform ing her job effectively.

Plaintiff continued to attempt to do her job, including writing left-handed and typing

her notes. Both of these were deemed unacceptable by her supervisor. She continued

to work until December 1994, at which time she remained absent from work because of

her injury until March 1995.

       After extensive attempts at rehabilitation, Plaintiff was sent to Dr. E. B.

Wilkerson, Jr., an orthopedic surgeon, for examination and treatment. After examining

Plaintiff and perform ing an arthrogram on her wrist, which revealed an extensive tear in

the fibrocartilage of Plaintiff’s right wrist, Dr. Wilkerson performed surgery in an

attempt to repair the damaged fibrocartilage. Following surgery, Dr. Wilkerson

testified that the nature of the injury was not consistent with the description of the way

that Plaintiff said she was hurt and voiced the opinion that a degenerative condition in

the structure of her cartilage was the problem rather than the injury. After performing

numerous tests and range of motion studies, Dr. Wilkerson was of the opinion that

Plaintiff had reached maximum m edical improvement, and gave her a permanent

disability rating of 14% to the right arm. At that time he released her from his care.

       In March 1996 after releasing Plaintiff from his care, Dr. Wilkerson completed a

standardized report entitled “Tennessee Department of Labor Division of Worker’s

Compensation Standard Form Medical Report on Injuries.” In this report he detailed

Plaintiff’s injuries. The report contained the following question:


       “Considering the nature of Claimant’s occupation and medical
       history along with diagnosis and treatment, does this injury more
       probably than not arise out of the claimant’s employment?”


Dr. Wilkerson answered “yes” to the above question.

       After continuing to experience pain in her right wrist Defendant’s risk

                                             2
management department sent Plaintiff to Dr. Neil Aranov, a clinical

psychologist, to determine if there were any psychological factors resulting from

her work-related injury that were impairing her recovery and return to the

workforce. In his deposition Dr. Aranov testified that Plaintiff suffered from a

psychological condition referred to as “adjustment disorder with associated

anxiety with depression” which was directly caused by Plaintiff’s work-related

injury. Dr. Aranov’s prescribed treatment plan was unsuccessful and after three

separate visits with Plaintiff he terminated the treatment. This suit ultimately

followed.

      While Defendant as a governmental agency is not covered by the

Tennessee Workers Compensation Act, it does have a policy where it

compensates for on-the-job injuries, using the Tennessee Workers Compensation

Act as a guideline. Following a bench trial the court found that Plaintiff was

entitled to 60% disability of the right arm, entitling her to receive weekly

payments of $257.00 for 120 weeks amounting to $30,814.00, along with

discretionary costs of $386.29 and approved attorney fees in the amount of

$6,172.80. This appeal followed.

      Our scope of review is de novo upon the record in the trial court. All

findings of fact by the trial court come to this court with a presumption of

correctness, and, absent an error of law, unless we find that the evidence

preponderates against these findings we must affirm. T.R.A.P. 13(d).

      The first issue we address is whether or not the trial court was in error in

finding that Plaintiff’s injury occurred in the course and scope of her

employment. The record does reflect that the deposition testimony of Dr.

Wilkerson was to the effect that the pain described by Plaintiff came from an

area of her wrist that would not have resulted from an injury like the one that she

received and that following the surgery he was of the opinion that the injury

resulted from a degenerative “wear and tear.”

      Notwithstanding this testimony, the record reveals that Dr. Wilkerson signed

                                          3
at least five different reports to Defendant stating that Plaintiff’s injuries arose out

of her employment. Four of these reports were filed by Dr. Wilkerson after he

had performed the surgery on Plaintiff’s wrist. We already noted that the final

report filed by Dr. Wilkerson affirmed that Plaintiff’s injury, more probably than not

arose out of her employment.

      There is ample lay testimony by Plaintiff from which the trial court could

reasonably infer that a tear of the fibrocartilage of her right wrist was a direct

result of Plaintiff’s employment by Defendant. A trial court may properly

predicate a workers’ compensation award on medical testimony that a given

accident “could be” the cause of an injury, if there is also lay testimony from

which it may reasonably be inferred that the incident was the cause of the

injury. P & L Construction Co., Inc. v. Lankford, 559 S.W.2d 793 (Tenn. 1978). This

issue is without merit.

      The second and final issue is whether the trial court erred in awarding

Plaintiff a permanent vocational disability rating of 60% to the right arm. In Clark

v. National Union Fire Ins., 774 S.W.2d 586, 589 (Tenn. 1989) our supreme court

stated that in order to determine the extent of vocational disability the trial court

must consider all of the pertinent factors, including job skills, education, training,

duration of disability, job opportunities, in addition to the anatomical disability

testified to by the medical experts. Clark at 598. Furthermore, in determining the

amount of vocational disability incurred by the employee, the trial court should

also consider the employee’s own assessment of her physical condition and

resulting disabilities. Id. The employee’s testimony is probative in establishing

such conditions as the existence of pain, its location and the employee’s

inability to work. Id. In addition to the proof heretofore considered, we note

that Dr. Aranov testified that although there was no psychiatric disability present

in Plaintiff, she was “not malingering” and that she suffered from an adjustment

disorder with associated depression and anxiety directly resulting from her work-

related injury.

                                           4
       Plaintiff testified that she continued to suffer pain and cramping in her right

hand following the numerous and repeated attempts to alleviate these

problems. She further testified that her disability resulted in a reduction in her

ability to grip objects as well as a general reduction in the dexterity of her right

hand. Her training and employment experience have been limited to the area

of social work for the past twenty years. The evidence also reflects that Plaintiff

subsequently found another job as a social worker following six months of

unemployment and that her present employment has been affected by her

disability to the extent that it requires her to work many hours more per week to

perform duties that she normally would complete in a forty hour work week. In

sum, we are of the opinion that the evidence does not preponderate against

the findings of the trial court concerning the extent of her permanent disability.

This issue is also without merit.

       Accordingly, the judgment of the trial court is affirmed in all respects.

Costs in this cause on appeal are taxed to Defendant, for which execution may

issue if necessary.



                                        __________________________________________
                                        TOMLIN, SR. J.


                                        __________________________________________
                                        CRAWFORD, P. J. W.S.      (CONCURS)


                                        __________________________________________
                                        HIGHERS, J.             (CONCURS)




                                          5
