Sherry Maxwell v. Nissan Motor Mfg. Corp., et al.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. This is a bilateral carpal tunnel syndrome case involving a 34-year-old woman whose impairment to each arm was judicially found to be 33 percent. Her condition gradually evolved, and she was initially treated by Dr. Thomas Tompkins, an orthopedic specialist, on August 21, 1995. Six weeks later he performed the usual surgical releases, which were successful. Dr. Tompkins last saw the plaintiff on January 12, 1996 when he released her to resume employment but without repetitive forceful gripping. Basing his assessment on the Guidelines, Dr. Tompkins testified that she had five percent impairment to each arm. In February 1996, Dr. David Gaw, an orthopedist, was employed by the plaintiff's counsel to perform an IME. He testified that the plaintiff had a ten percent impairment to each arm. Because the plaintiff returned to work in January 1996 and from that day forward "has not missed work," "has not complained to anyone about your job," "has not complained to the doctors or anyone at Nissan about your hands," "has gotten good work reviews since then," the employer complains that the assessment of a 33 percent impairment to each arm is excessive, arguing that if this finding is correct the plaintiff is ipso facto unable to perform her job, i.e., that the anomaly is apparent. Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. TENN. CODE ANN. _ 5-6-225(e)(2). Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). The inferred thrust of the appellant's argument respecting our