Blackburn v. Allied Chemical Corp.

[601] OPINION HARBISON, Chief Justice. In this worker’s compensation case, the employer and its insurer appealed from an award of permanent total disability. It is conceded that the employee sustained a compensable injury on January 23, 1978, when she fell at work. She fractured the head and neck of her left femur. At that time she was forty-nine years of age. Appellee’s injuries were treated by Dr. Charles A. Gouffon, an orthopedic surgeon. He reduced the fracture by surgery, inserting a metal pin into the femur to hold the fragments together for healing. He testified that the employee reached maximum recovery on or about March 13, 1979. In a letter he advised the workmen’s compensation insurer that the employee could perform only sedentary types of work. He testified that she could perform only with difficulty work which involved frequent moving about or change of position. The employee was also examined by Dr. Martin Baker, an orthopedic surgeon, on two occasions in the spring and summer of 1979. He testified that the employee’s left leg had become shorter by one inch than the right and that she walked with a noticeable limp. She complained of considerable back pain, and Dr. Baker testified that injuries to the hip frequently caused limping and that this in turn could cause discomfort and pain in the back. Dr. Baker also testified that the surgical pin used to reduce the fracture of the femur protrudes above the articular surface of what remains of the head of the femur and is “obviously scratching in the socket portion.” Both Dr. Baker and Dr. Gouffon were of the opinion that the employee would require further surgery in the future. They expressed the opinion that the employee had sustained fifty percent permanent partial disability of the left leg or twenty-five percent permanent partial disability to the body as a whole. Both stated that she may have to have a hip joint replacement in the future. Appellee herself testified that her leg stayed sore and was painful at all times and that she had a great deal of pain in her back. She testified that she is unable to bend at the waist, cannot completely dress herself without aid and that she cannot sit still for long periods at a time. She was of the opinion that she was totally disabled from work and stated that Dr. Gouffon had so advised her. Considering all of the testimony, lay and expert, the trial judge stated: “This lady suffered back pain as a result of this injury, the screw that is used to fix this is described as a socket hubbit which is certainly the body as a whole and this lady is permanently and totally disabled. The doctors say that she is getting worse and that’s consistent with it. They say she will continue to get worse. Probably have to have this hip replaced. Certainly consistent with her testimony in this case.” It is the insistence of appellants that the injury to the employee was confined to her left lower extremity, and that therefore her recovery must be limited to that provided in the statutory schedule for loss of a leg, T.C.A. § 50-1007(c). Appellee contends that the trial judge correctly found that she had sustained injuries that were not confined to the left lower extremity and that she was entitled to the maximum statutory benefits. In the opinion of the majority of the Court, there is material evidence to sustain the finding of the trial judge that appellee’s injury and the results of necessary surgery were not confined to the left lower extremity. At a minimum, these appear to extend into the hip socket, and there is evidence that they may extend into other parts of the trunk of the body. This Court has previously construed the meaning of “extremity” with respect to an injury to an arm and shoulder. It held that the term did not include portions of the trunk of the body. Continental Insurance Companies v. Pruitt, 541 S.W.2d 594 (Tenn.1976). The same rationale is applicable here. The sur [602] gical pin used to reduce the fracture in this case protrudes into the hip socket, just as the injury in Pruitt extended into the rota-tor cuff, or portion of the shoulder. The hip socket itself is part of the pelvis; the head of the femur fits into it in a ball-and-socket joint. The lower part of the pelvis, a cavity called the acetabulum, envelops the head of the femur. The acetabulum itself, into which the surgical pin protrudes and causes pain, is not a part of the femur or of the left lower extremity. See 1B, R. Gray, Attorneys’ Textbook of Medicine § 8.00 (3d ed. 1980); Stedman’s Medical Dictionary p. 647 (4th ed. 1976). While the issue was not raised in the briefs of the parties, in a concurring opinion filed in this case it is suggested that the Court should overrule or modify prior decisions that where an injury is in fact confined to a scheduled member, only scheduled benefits may be awarded. Shores v. Shores, 217 Tenn. 96, 395 S.W.2d 388 (1965); Genesco v. Creamer, 584 S.W.2d 191 (Tenn.1979), and other cases cited therein. Although as pointed out in the separate opinion of Justice Brock, the injury in Shores v. Shores, supra, resulted only in permanent partial rather than total permanent disability, nevertheless the Court gave an authoritative interpretation to a 1963 amendment to the worker’s compensation statute, T.C.A. § 50-1007(c). In Chapman v. Clement Bros. Inc., 222 Tenn. 223, 435 S.W.2d 117 (1968), the matter was re-examined and the Court was asked to overrule the Shores case, and to hold that even though an injury was to a scheduled member, benefits need not be confined to the schedule. This the Court expressly declined to do. The Court alluded to the matter again in Continental Ins. Companies v. Pruitt, 541 S.W.2d 594, 597 (1976), and again examined it in some detail in the case of Genesco v. Creamer, 584 S.W.2d 191 (Tenn.1979). In the latter case the Court held that where injuries were confined to a scheduled member, only scheduled benefits could be awarded, even though there was a claim of total permanent disability rather than merely partial disability. Therefore, the majority are of the opinion that the interpretation of the statute made in the Shores case and followed in subsequent cases should not now be altered unless the General Assembly sees fit to make such a change. As stated by the Court in Hamby v. McDaniel, 559 S.W.2d 774, 776 (Tenn.1977): “The legislature is presumed to know the interpretation which courts make of its enactments; the fact that the legislature has not expressed disapproval of a judicial construction of a statute is persuasive evidence of legislative adoption of the judicial construction, especially where the law is amended in other particulars, or where the statute is re-enacted without change in the part construed.” The construction given to the worker’s compensation schedules by this Court is consistent with that given to an important federal statute in the recent case of Potomac Electric Power Co. v. Director, Office of Worker’s Compensation Programs, — U.S. —, 101 S.Ct. 509, 66 L.Ed.2d 446 (1980) (injuries specifically scheduled in Longshoremen’s and Harbor Workers’ Compensation Act must be compensated in accordance with schedules and not pursuant to more general provisions of statutes). Since we are of the opinion that appel-lee’s initial fracture and the subsequent surgery resulted in injuries extending beyond a scheduled member, we are of the opinion that there is material evidence to support the award of the trial court of disability to the body as a whole. The judgment of the trial court is affirmed at the cost of appellants. The cause is remanded to that court for enforcement of the judgment and for any further orders which may be necessary. FONES and COOPER, JJ., concur. BROCK and DROWOTA, JJ., file separate concurring opinion.