                     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
