author: FRANK F. DROWOTA, III, C.J.,

text:
    Ronnie DOTSON v. RICE-CHRYSLER-PLYMOUTH-DODGE, INC., et al.
    Supreme Court of Tennessee, at Knoxville.
    Jan. 4, 2005 Session.
    March 16, 2005.

      Robert R. Davies, Knoxville, Tennessee, for the appellants, Rice-Chrysler-Plymouth-Dodge, Inc. and the Hartford.
    Louis Andrew MeElroy, II, Knoxville, Tennessee, for the appellee, Ronnie Dotson.
   OPINION

FRANK F. DROWOTA, III, C.J.,

delivered the opinion of the court,

in which E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, and WILLIAM M. BARKER, J.J., joined.

In this workers’ compensation action, the plaintiff sought compensation for a work-related injury which caused reflex sympathetic dystrophy in his left arm, a scheduled member for workers’ compensation purposes. The plaintiff contended that reflex sympathetic dystrophy which affects only a scheduled member nevertheless entitles a claimant to body-as-a-whole compensation because the American Medical Association’s Guides to the Evaluation of Permanent Impairment convert reflex sympathetic dystrophy to a rating for the body as a whole. Alternatively, the plaintiff contended that his condition extended beyond his arm because he was denied potential future treatment options for other, non-work-related injuries and because his arm’s hypersensitivity and pain caused insomnia, chronic fatigue, and a diminished ability to concentrate. Holding that reflex sympathetic dystrophy must always be apportioned to the body as a whole, the trial court awarded the plaintiff permanent total disability benefits. Reversing the trial court, we hold that an award for reflex sympathetic dystrophy may be limited to the compensation for scheduled members as provided in Tennessee Code Annotated section 50-6-207(3)(A) to (D) (1999). Further, we hold that for reflex sympathetic dystrophy to be properly apportioned to the body as a whole under Tennessee Code Annotated section 50-6-207(3)(F) (1999), the claimant’s injury must affect a portion of the body not statutorily scheduled, affect a particular combination of members not statutorily provided for, or cause a permanent injury to an unscheduled portion of the body. Having so held, we determine that the preponderance of the evidence fails to show that the plaintiffs condition has extended beyond his arm as a scheduled member. Therefore, we vacate the trial court’s award of permanent total disability benefits to the plaintiff and hold that the plaintiffs permanent disability award is limited exclusively to 200 weeks of benefits pursuant to Tennessee Code Annotated section 50-6-207(3)(A)(ii)(m) (1999). We remand this case to the trial court for further proceedings consistent with this opinion, as may be necessary.

I. Factual and Procedural Background

The plaintiff, Ronnie Dotson, worked as a delivery driver and stockperson for the defendant auto dealership, Rice-Chrysler-Plymouth-Dodge, Inc., which was insured by co-defendant, the Hartford. According to the record, Mr. Dotson was forty-two years old at the time of trial. He has completed a ninth-grade education, achieving below-average reading and mathematic abilities. His prior vocational history consisted largely of medium to heavy labor in various unskilled or low-level semi-skilled positions.

Mr. Dotson had been employed by Rice-Chrysler for about eight years when he suffered a work-related accident. On August 1, 2001, while dragging to storage a crated 150-pound side-panel for a van, he slipped on a piece of sheet metal which lay on Rice-Chrysler’s warehouse floor. The heavy crate fell over, crushing his left hand against a four-by-four inch post.

This accident caused various traumatic injuries. According to the deposition testimony of Todd R. Griffith, M.D., one of Mr. Dotson’s treating physicians, the impact of the crate fractured a metacarpal bone in Mr. Dotson’s left hand and caused bruising and swelling. Mr. Dotson also experienced numbness and tingling in the fingers of his left hand which in Dr. Griffith’s opinion were caused by “traumatic carpal tunnel syndrome.” With his left hand and forearm in a cast, Mr. Dotson soon returned to work for four days, but pain in his left hand prevented him from continuing. Since then he has not worked.

According to Dr. Griffith, by September 2001 Mr. Dotson began experiencing symptoms in his left hand indicative of reflex sympathetic dystrophy (“RSD”), such as increased sweating, hypersensitivity and pain. Dr. Griffith defined RSD as a “syndrome characterized by increased sympathetic nervous overdrive to the vessels and nerves in a limb, typically an upper extremity., It causes changes in temperature, changes in sweating, and most clinically significante,] severe pain that is difficult to control.” In Dr. Griffith’s opinion, Mr. Dotson’s RSD was caused by the impact of the crate upon his left hand. Following surgery on October 5, 2001 which corrected Mr. Dotson’s carpal tunnel syndrome, the symptoms of his RSD worsened.

Subsequently, in spite of various treatments, Mr. Dotson’s left hand has suffered chronically from loss in range of motion, increased sweating, constant hypersensitivity to touch, severe pain, and a “burning[,] ... throbbing, aching” sensation. According to Mr. Dotson, even the slightest contact of any object with his left hand has caused “unbearable” irritation and pain. Although quietude has served to mitigate this pain, according to Mr. Dotson and his wife, Rebecca Lynn Dotson, his condition has nevertheless given rise to insomnia, chronic fatigue, and a diminished ability to concentrate upon tasks.

Dr. Griffith determined on May 16, 2002 that Mr. Dotson had reached maximum medical improvement. Dr. Griffith regarded the RSD in Mr. Dotson’s left hand as permanent and imposed a permanent restriction against any vocational use of Mr. Dotson’s left arm. Dr. Griffith further recommended that he receive specialized chronic pain management. Based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment (5th ed. 2001) (“AMA Guides ”), Dr. Griffith assigned a 74% anatomical impairment rating to Mr. Dotson’s left upper extremity and a 44% impairment rating to his body as a whole.

Mr. Dotson brought a workers’ compensation action in the Blount County Chancery Court against Rice-Chrysler and the Hartford (collectively the “defendants”). At trial, Mr. Dotson maintained that the RSD in his left arm extended beyond the arm as a scheduled member, TenmCode Ann. § 50-6-207(3)(A)(ii)(m) (1999), thus satisfying the requirements for body-as-a-whole compensation, § 50-6-207(3)(F). First, Mr. Dotson argued that denial of surgery as a treatment option for non-work-related lateral epicondylitis (or “tennis elbow”) in his right arm amounts to an extension of the RSD beyond his left arm. Dr. Griffith testified in his deposition that “with the history of RSD in the left arm, [Mr. Dotson] is at higher risk of developing RSD in his right arm if he were to undergo a surgical procedure.... So I did not give him the option of surgical treatment of his tennis elbow.” Second, Mr. Dotson argued that the RSD in his left arm has extended to his body as a whole via the insomnia and fatigue consequent to his chronic pain.

Furthermore, Mr. Dotson alternatively maintained that as a matter of law RSD must always be classified as injury to the body as a whole regardless of whether the RSD is confined to a scheduled member. The AMA Guides require conversion of upper extremity impairment caused by RSD to an anatomical disability rating for the body as a whole. Mr. Dotson contends that because the Tennessee General Assembly has mandated use of the AMA Guides in rating anatomical disability, Tenn.Code Ann. § 50-6-204(d)(3) (1999), the AMA Guides’ conversion of RSD to the body as a whole consequently mandates classification of RSD as injury to the body as a whole.

The defendants responded by arguing that there is insufficient evidence to show that Mr. Dotson’s RSD has extended beyond the left arm as a scheduled member. The defendants also disputed the assertion that RSD must always be classified as injury to the body as a whole. They emphasized that the AMA Guides convert a variety of scheduled member injuries to a body-as-a-whole rating but pointed out that such conversion is not always required as a matter of law. According to the defendants, because Dr. Griffith testified unequivocally that the symptoms of Mr. Dotson’s RSD were limited to his left arm, he should be limited to compensation for loss of a scheduled member.

The trial court characterized as insubstantial and “thin” any evidence for extension of RSD beyond Mr. Dotson’s arm as a scheduled member. Nevertheless, in light of the conversion scheme for RSD provided in the AMA Guides, the trial court held that as a matter of law “RSD is required to be converted to the body as a whole.” Having thus determined that Mr. Dotson’s RSD cannot be limited to scheduled member compensation, the trial court focused on the extent of his vocational disability. Vocational expert Jane L. Hall testified at trial that in her opinion Mr. Dotson was permanently and totally disabled vocationally. In contrast, vocational expert Rodney E. Caldwell, Ph.D. opined in a deposition that Mr. Dotson was 75% vocationally disabled. Taking into account all the relevant evidence, the trial court found Mr. Dotson to be permanently and totally disabled within the meaning of Tennessee Code Annotated section 50-6-207(4)(B) (1999). Therefore, the trial court ordered Rice-Chrysler and the Hartford to pay Mr. Dotson permanent disability benefits from the date of maximum medical improvement, May 16, 2002, until he becomes eligible for social security retirement benefits, with an offset for certain lump sum awards.

Rice-Chrysler and the Hartford appealed. We transferred this case for review by the entire Supreme Court.

II. Analysis

The primary question in this case is whether, for purposes of workers’ compensation, reflex sympathetic dystrophy must always be classified as injury to the body as a whole, regardless of whether the effects of RSD are limited to a scheduled member. Because this is a matter of law which involves construing the workers’ compensation statutory scheme, our standard of review is de novo with no presumption of' correctness. Ivey v. Trans Global Gas & Oil, 3 S.W.3d 441, 446 (Tenn.1999). We now decide this issue of first impression.

Workers’ compensation claims necessarily fall into one of four statutory classifications: (1) temporary total disabilities; (2) temporary partial disabilities; (3) permanent partial disabilities; and (4) permanent total disabilities. TenmCode Ann. § 50-6-207(1) to (4) (1999). Each separate disability classification is independent, serves a specific compensation goal, and provides distinct benefits. See Davis v. Reagan, 951 S.W.2d 766, 767 (Tenn.1997). Permanent partial disability is further subdivided into compensation for loss of enumerated scheduled members, for serious disfigurement, and for disability apportioned to the body as a whole. Tenn.Code Ann. § 50-6-207(3) (1999). Restated, our question is whether compensation for RSD may be limited to the specific benefits provided for loss of a scheduled member or must always be apportioned to the body as a whole.

We begin our analysis by addressing the relationship between the workers’ compensation statutory scheme and the AMA Guides. Tennessee Code Annotated section 50-6-204(d)(3) (1999) states:

To provide uniformity and fairness for all parties, any medical report prepared by a physician furnishing medical treatment to a claimant shall use the American Medical Association Guides to the Evaluation of Permanent Impairment, (American Medical Association) or the Manual for Orthopedic Surgeons in Evaluating Permanent Physical Impairment, (American Academy of Orthopedic Surgeons). A physician shall utilize the most recent edition of either publication in determining the degree of anatomical impairment. A practitioner shall be required to give an impairment rating based on one (1) of the two (2) publications noted above.

The purpose of statutorily-mandated use of the AMA Guides is provided in the statute itself: “[t]o provide uniformity and fairness for all parties.... ” TenmCode Ann. § 50-6-204(d)(3). As we explained in Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 457 (Tenn.1988), this language “clearly evidences a legislative intent to standardize the methods of rating percentages of anatomical disability to minimize arbitrariness and [to] encourage predictability in such assessments by medical experts.”

Yet in demanding that a medical expert follow the AMA Guides when assessing anatomical disability, the statute does not somehow elevate the AMA Guides themselves to the status of law. Rather, the AMA Guides are nothing more than tools for effectuating in a fair and predictable way the paramount goals and requirements of the workers’ compensation statutory scheme. See Thompson v. Leon Russell Enters., 834 S.W.2d 927, 929 (Tenn.1992) (“[T]he fact [that] a scheduled injury can be converted, via the [AMA Guides ] or the Manual for Orthopedic Surgeons ..., to a percentage disability to the body as a whole provides no basis upon which to sustain an award to the body as a whole under Tennessee Workers’ Compensation Law.”) (emphasis added); Reagan v. Tenn. Mun. League, 751 S.W.2d 842, 844 (Tenn.1988) (“The mere fact that a medical impairment rating to a particular member may translate, for purposes of [the AMA Guides ], into a disability rating to the body as a whole does not alter the rule that if an injury is to a scheduled member only, the statutory schedules must control the disability award.”) (emphasis added). In short, the statutory compensation scheme controls the application of the AMA Guides. As the defendants correctly assert, to require injury to a scheduled member alone to be apportioned to the body as a whole merely because the AMA Guides so provide would confound the classification scheme provided in Tennessee Code Annotated section 50-6-207.

Because RSD is not specifically provided for by statute, adjudication of benefits for that condition is controlled generally by the statutory classification scheme. It is well settled that under Tennessee workers’ compensation law, an award for permanent injury to a scheduled member alone is exclusively limited to the award provided by the statutory schedule of Tennessee Code Annotated section 50-6-207(3)(A) to (D) (1999). Ivey, 3 S.W.3d at 448 (“[W]here 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 schedule.”); McIlvain v. Russell Stover Candies, Inc., 996 S.W.2d 179, 185 (Tenn.1999). By contrast, benefits for injury to the body as a whole, Tenn.Code Ann. § 50-6-207(3)(F) (1999), are available “where an injury is to a portion of the body not statutorily ‘scheduled,’ where an injury affects a particular combination of members not statutorily provided for, or where a scheduled injury causes a permanent injury to an unscheduled portion of the body.” Thompson, 834 S.W.2d at 929 (citations omitted).

In accord with this statutory scheme, we hold that where reflex sympathetic dystrophy affects a scheduled member alone, an award of permanent disability benefits is limited exclusively to what the schedule for that member provides. For reflex sympathetic dystrophy to be properly apportioned to the body as a whole, the claimant’s injury must affect a portion of the body not statutorily scheduled, affect a particular combination of members not statutorily provided for, or cause a permanent injury to an unscheduled portion of the body. See id. at 929. Therefore, we reverse the trial court’s holding that the RSD in Mr. Dotson’s left arm must be apportioned to the body as a whole because the AMA Guides so provide, regardless of whether the claimant has otherwise satisfied the requirements for an award to the body as a whole.

Having thus decided the primary issue, we must now evaluate Mr. Dotson’s injury in light of the standard which we have adopted. Findings of fact are reviewed de novo upon the record of the trial court, accompanied by a presumption of correctness unless the preponderance of the evidence is otherwise. Tenn.Code. Ann. § 50 — 6—225(e)(2) (1999); McIlvain, 996 S.W.2d at 188. An appellate court thus conducts an independent review to determine where the preponderance of the evidence lies. Walker v. Saturn Corp., 986 S.W.2d 204, 207 (Tenn.1998).

In his deposition, Dr. Griffith testified that, in his expert opinion, Mr. Dotson had RSD in his left lower arm and that the condition was permanent. According to Dr. Griffith, as a result of the RSD, Mr. Dotson “basically does not have any functional use of his left arm.” Moreover, at trial counsel for the defendants conceded that Mr. Dotson’s loss of use of the arm was 100%. Accordingly, we conclude that Mr. Dotson is entitled to a permanent partial disability award for total loss of his left arm as a scheduled member. See TenmCode Ann. § 50-6-207(3)(A)(ii)(m) (1999) (“For the loss of an arm, sixty-six and two-third percent (66%%) of the average weekly wages during two hundred (200) weeks.”).

Further, vacating the trial court’s award of permanent total disability benefits, we hold that Mr. Dotson’s permanent disability award is limited exclusively to the 200 weeks provided for total loss of an arm as a scheduled member. See id. The preponderance of the evidence fails to show that Mr. Dotson’s injury qualifies for an award to the body as a whole. First, Dr. Griffith testified unequivocally that the symptoms of Mr. Dotson’s RSD were limited to his left arm. The record contains no conflicting medical testimony.

Second, because RSD in one part of the body increases the risk that subsequent physical trauma will cause it to spread, Dr. Griffith has ruled out possible future surgery to correct Mr. Dotson’s non-work-related lateral epicondylitis in his right elbow. However, there is no evidence that Mr. Dotson has exhausted conservative treatment options short of surgery for his lateral epicondylitis, and the mere potentiality that treatment options in Mr. Dotson’s case might be foreclosed in the future is too speculative to be classified as a current injury.

Third, although Mr. Dotson suffers from permanent severe pain and hypersensitivity to touch in his left arm, the pain and hypersensitivity themselves have not spread beyond his arm. When a court determines the level of a workers’ compensation award, the pain consequential to a single injury to a scheduled member alone may not itself be considered a separate, unscheduled injury. See Murray Ohio Mfg. Co. v. Yarber, 223 Tenn. 404, 446 S.W.2d 256, 258 (1969) (holding that where scheduled member compensation has been specifically provided for by statute, “it must be assumed by this Court that the Legislature was then aware of the concomitant pain, suffering, [and so forth] normally attendant upon impact injury” and declining to treat leg pain consequent to a leg injury as a separate, unscheduled injury). To hold otherwise would permit a plaintiff “to sever or splinter concomitant difficulties of a single injury.” Id. However, where injury to a scheduled member extends beyond the scheduled member, compensation for injury to the body as a whole may be appropriate. McWhirter v. Kimbro, 742 S.W.2d 255, 258-59 (Tenn.1987). Mr. Dotson’s pain and hypersensitivity do not give rise to body-as-a-whole compensation because they are limited to his left arm, a scheduled member.

Fourth, Mr. Dotson has suffered secondarily from insomnia, chronic fatigue, and a diminished ability to concentrate. Although these sequelae may be factors to consider in determining vocational disability, see, e.g., Fagg v. Hutch Mfg. Co., 755 S.W.2d 446 (Tenn.1988), as incidents of a scheduled injury already adjudged to be a total loss, they do not alter our classification or rating of Mr. Dotson’s injury. We further note that Mr. Dotson has failed to prove the permanence of these sequelae by expert medical testimony. In all but the most obvious cases, permanency in workers’ compensation cases must be established by expert medical testimony. Corcoran, 746 S.W.2d at 458; see Johnson v. Midwesco, Inc., 801 S.W.2d 804, 806 (Tenn.1990).

III. Conclusion

Reversing the trial court, we hold that a permanent disability award for reflex sympathetic dystrophy may be limited to the statutory compensation for scheduled members as provided in Tennessee Code Annotated section 50-6-207(3)(A) to (D) (1999). Further, we hold that for reflex sympathetic dystrophy to be properly apportioned to the body as a whole under Tennessee Code Amnotated section 50-6-207(3)(F) (1999), the claimant’s injury must affect a portion of the body not statutorily scheduled, affect a particular combination of members not statutorily provided for, or cause a permanent injury to an unscheduled portion of the body.

Having so held, we vacate the trial court’s award of permanent total disability benefits to Mr. Dotson. We hold that because Mr. Dotson’s injury is limited to his left arm as a scheduled member, his permanent disability award is limited exclusively to what Tennessee Code Annotated section 50-6-207(3)(A)(ii)(m) (1999) provides. In light of our determination that Mr. Dotson has no use of his left arm, we award him 200 weeks of permanent partial disability benefits. We remand this case to the trial court for further proceedings consistent with this opinion, as may be necessary. Costs are taxed one-half to the plaintiff, Mr. Dotson, and one-half to the defendants, Rice-Chrysler and the Hartford, for which execution may issue if necessary.

      . RSD is also known as complex regional pain syndrome.

      . Lateral epicondylitis involves inflammation and pain in the tissues adjoining the elbow’s outside bony projection. See Attorneys’ Textbook of Medicine ¶ 4.72 (Roscoe N. Gray et al. eds., 3d ed.2001); PDR Medical Dictionary 582 (1995).

      . Section 50-6-204(d)(3) (1999) was in force when this cause arose and remains applicable to this appeal. It has since been totally superseded by an amended section now in effect. 2004 Tenn. Pub. Acts ch. 962, § 13. Tennessee Code Annotated section 50-6-204(d)(3)(A) (Supp.2004) provides:
      To provide uniformity and fairness for all parties in determining the degree of anatomical impairment sustained by the employee, a physician, chiropractor or medical practitioner who is permitted to give expert testimony in a Tennessee court of law and who has provided medical treatment to an employee or who has examined or evaluated an employee seeking workers' compensation benefits shall utilize the applicable edition of the AMA Guides as established in [section] 50-6-102 or in cases not covered by the AMA Guides an impairment rating by any appropriate method used and accepted by the medical community.
      For the limited purposes of this opinion, there is no material difference between the versions.

      . Although several unpublished decisions of the Workers’ Compensation Panel have apportioned RSD to the body as a whole, they have done so because in each case there was injury to an unscheduled portion of the body, the injury affected a particular combination of members not statutorily provided for, or a scheduled injury caused a permanent injury to an unscheduled portion of the body. See, e.g., T.V. Swaw v. Trane Unitary Prods. Commercial, No. M2001-02793-WC-R3-CV, 2002 WL 31740214 (Tenn.Workers Comp.Panel Dec. 9, 2002) (concluding that there was injury to the body as a whole where RSD in left knee caused right knee injury and where necessary medication had negative side-effects upon claimant); David Coleman v. Lumbermens Mut. Cas. Co., No. W2000-01168-WC-R3-CV, 2001 WL 285209 (Tenn.Workers Comp.Panel Mar. 15, 2001) (concluding that there was injury to the body as a whole where RSD affected shoulder and back and where claimant suffered from psychiatric condition); Janet L. Brooks v. Lear Seating Corp., No. 03S01-9702-CV-00024, 1998 WL 128960 (Tenn.Workers Comp.Panel Mar. 23, 1998) (concluding that-there was injury to the body as a whole where RSD in left knee was combined with psychiatric disorder and with injuries to the shoulders and hands).

      . We acknowledge the apparent anomaly of limiting RSD to scheduled member compensation when under another classification the condition’s debilitating nature may well entitle the claimant to permanent total disability benefits. Cf. Ivey, 3 S.W.3d at 448 n. 13 (questioning the fairness of treating “loss of mental faculties” as scheduled member compensation); Roberson v. Loretto Casket Co., 722 S.W.2d 380, 385 (Tenn.1986) (acknowledging the arbitrariness of limiting compensation for loss of one eye to the statutory schedule when the entire visual field is necessarily affected). Notwithstanding, we must uphold and effectuate the statutory compensation scheme as it is provided by the legislature. Sullivan ex rel. Hightower v. Edwards Oil Co., 141 S.W.3d 544, 548 (Tenn.2004).


source: Caselaw Access Project

author: E. RILEY ANDERSON, J., delivered

license: Public Domain

text:
    Drexel Wayne LONG, et al. v. MID-TENNESSEE FORD TRUCK SALES, INC., et al.
    Supreme Court of Tennessee, at Nashville.
    Feb. 2, 2005 Session.
    March 18, 2005.
    As Modified on Denial of Rehearing April 18, 2005.

      Scott Daniel and Melanie S. Lepp, Mur-freesboro, Tennessee, for the Appellant, Drexel Wayne Long.
    Richard E. Spicer and Christian M. Gar-stin, Nashville, Tennessee, for the Appel-lees, Mid-Tennessee Ford Truck Sales, Inc., and Travelers Insurance Company.
   OPINION

E. RILEY ANDERSON, J., delivered

the opinion of the court,

in which FRANK F. DROWOTA, III, C.J., and JANICE M. HOLDER and WILLIAM M. BARKER, JJ., joined. ADOLPHO A. BIRCH, JR., J., not participating.

We granted review in this workers’ compensation case to determine whether “nursing services,” as used in, Tennessee Code Annotated section 50-6-204(a) (1999), includes care provided by an injured employee’s spouse where the spouse is a certified nurse technician. After reviewing the record and applicable authority, we conclude that care provided by a certified nurse technician is compensable under the Workers’ Compensation Law irrespective of the relationship between the caregiver and the employee. We further hold that the care here was reasonably necessary and was provided pursuant to what the employee understood to be the physician’s orders. Accordingly, we reverse the findings of fact and conclusions of law of the Special Workers’ Compensation Appeals Panel as to this issue and remand to the trial court for a determination of the value of the nursing services rendered by Mrs. Long. We affirm as to the other issues raised by the appellant employee.

Background

On July 12, 1995, the employee, Drexel Wayne Long (“Long”), injured his right foot while in the course and scope of his employment with Mid-Tennessee Ford Truck Sales, Inc. (“Mid-Tennessee”) in Nashville, Tennessee. Long filed a workers’ compensation claim seeking benefits for the injury, including compensation for the nursing services provided to him by his wife, a certified nurse technician, following surgery for the injury. The complaint also sought benefits based on weight gain and sleep apnea allegedly resulting from the injury. The following evidence was presented before the trial court.

At the time of the injury, Long was working at the parts counter for Mid-Tennessee. His job duties included filling parts orders by retrieving the required parts from the employer’s warehouse and bringing them to the counter.

On July 12, 1995, Long was carrying a converter weighing thirty-five to forty pounds on his right shoulder when he felt a sharp pain in his right foot. He testified that “it felt like my right foot just broke in half.... I got up, and I couldn’t hardly put no weight on my right foot.” Mid-Tennessee initially did not believe that Long had sustained a work-related injury and refused to provide medical care.

Long had sustained at least three prior injuries to his right leg and foot. In 1983, Long injured his right leg in a motorcycle accident and underwent five surgeries to repair the damage resulting from the accident. In 1988, Long broke his right ankle in a slip and fall accident in the course and scope of his employment with a previous employer, Bud Jones Trucking. In 1991, Long fractured his right ankle again, this time while working for Mid-Tennessee. Following both the 1988 and 1991 injuries, Long filed and settled workers’ compensation claims and thereafter returned to work full time.

Dr. Barrett Rosen, who treated all of Long’s leg and foot injuries, performed fusion surgery on his right ankle following the 1991 accident. After the fusion surgery, Dr. Rosen restricted Long from standing or walking for prolonged periods. In 1992, Dr. Rosen assigned Long a 40% impairment rating to the right foot. Long continued to complain of pain in the ankle, and as of 1994, Dr. Rosen had restricted Long from standing for more than one hour at a time. As a result of his multiple injuries, Long developed degenerative arthritis in his foot. The evidence showed that in 1993 and 1994, Long complained to Dr. Rosen of having some difficulty working. In 1994, Long reported “significant swelling” when he was required to be on his feet, which caused him pain and took several days to go away.

Dr. Rosen authorized Long to return to work on light duty following his injury, but Mid-Tennessee had no light-duty work available for Long and made none available. Long has not worked since. He has a high school diploma and has taken some college courses. Additionally, he has worked as an insurance agent and as a supervisor for various employers.

Long continued to have problems with his right foot and underwent a second fusion surgery on February 4, 1997. He remained in the hospital for several days before being discharged. Long testified that when he went home, he was in a full leg cast, was non-ambulatory, and was confined to bed. He was instructed to use a “polar pak ice machine” to regulate the temperature of his leg. He testified that the ice in the polar pak had to be constantly monitored to ensure that the correct temperature was maintained. Shortly after the operation, Long’s wound developed a staph infection which took several months to heal. The treatment of the infection required that his bandages be changed every four hours. Long testified that he understood from Dr. Rosen’s instructions that he would need home medical care following his surgery.

As a result, Long and his wife, Billie Sue Long, both testified that they requested that home nursing care be provided through the workers’ compensation carrier, but they were refused. Since Long was bedridden, his wife took seventeen weeks off from her job at Whirlpool to care for him. Mrs. Long testified that she had been a Certified Nurse Technician (“CNT”) since 1994 and that, although she did not work as a CNT at Whirlpool, she had maintained her license and was in fact working as a CNT at the time of trial.

After the surgery, Long continued to complain of significant pain and swelling in his right foot, right ankle, right leg, and back. Long is unable to be physically active due to his injury, and Dr. Rosen eventually prescribed a motorized cart for him to use in getting around. Since the injury, Long has gained a significant amount of weight which, he claims, contributed to or caused him to develop sleep apnea. The evidence showed that Long, approximately six feet tall, weighed about 212 pounds in 1988; 252 pounds in 1990; 264 pounds in 1996; and 309 pounds in November 1999.

Dr. Rosen testified by deposition that the July 1995 injury significantly aggravated Long’s problems with his right foot. Dr. Rosen stated that Long’s injury has affected his gait, which has caused him to have back pain. The medical records indicate that- Long began complaining of back pain in 1990. In 1999, Dr. Rosen testified by deposition that the stresses and strains on Long’s back caused by the changes in Long’s foot and leg “will create difficulties in the back,” but he stated that “the back, itself, was not injured.” Dr. Rosen also stated that Long’s inability to be active contributed to his weight gain.

Dr. Rosen assigned a permanent medical impairment of 60% to the right foot, 42% to the lower right extremity, and 17% to the body as a whole. Dr. Rosen testified in his 1999 deposition that 40% of the foot impairment was attributable to the prior injuries. He also testified that a portion of the lower right extremity and body as a whole impairment ratings would be attributable to the prior injuries, but he did not give a specific number.

Dr. Jeffrey Herring, who also treated Long, adopted the impairment ratings assigned by Dr. Rosen but opined that only 14% of the impairment to Long’s foot and only 4% of the impairment to the body as a whole was attributable to the 1995 injury and the 1997 surgery.

Dr. David S. Knapp, a rheumatologist who performed an independent medical examination, testified that he believed Long’s work activities aggravated the pain Long experienced in his foot. He testified, however, that because of Long’s history of foot and leg injuries and the 1991 fusion surgery, the 1995 injury would have happened eventually regardless of the type of work Long did. Dr. Rosen also testified in his 1996 deposition that the degenerative changes were “likely” to happen no matter what but were probably speeded up by Long’s prolonged standing and walking at work.

Long developed severe obstructive sleep apnea at some point after the 1997 surgery and, in turn, had surgery to address the sleep apnea. Following that surgery, Dr. Jeffrey A. Paffrath found that the surgery had had a minimal corrective effect and that further treatment would be required. Dr. Paffrath stated that the sleep apnea more probably than not arose out of Long’s 1995 injury. Dr. Paffrath did not assign an impairment rating for the sleep apnea, stating that although the AMA Guides discuss obstructive sleep apnea, they “do[ ] not give any clear guidance as to how to arrive at a[n] impairment rating.”

Dr. William H. Noah diagnosed Long’s sleep apnea and opined that Long’s injury and condition could, and probably did, increase the severity of Long’s sleep apnea. However, like Dr. Paffrath, Dr. Noah did not assign an impairment rating, noting that treated obstructive sleep apnea “has no permanent disability.”

The trial court denied Long’s claim for permanent total disability, finding a 40% vocational disability apportioned to the right foot. The trial court declined to apportion the injury to the leg or to the body as a whole and also denied benefits based on the weight gain and sleep apnea. The trial court denied without comment the claim for reimbursement for Mrs. Long’s nursing care. The Special Workers’ Compensation Appeals Panel affirmed the trial court in all respects. We accepted review.

ANALYSIS

Standard of Review

Our standard of review of factual issues in a workers’ compensation case is de novo upon the record of the trial court, accompanied by a presumption of correctness of the trial court’s factual findings, unless the preponderance of the evidence is otherwise. Tenn.Code Ann. § 50-6-225(e)(2) (1999); see also Houser v. Bi-Lo, Inc., 36 S.W.3d 68, 70-71 (Tenn.2001). When the trial court has seen the witnesses and heard the testimony, especially where issues of credibility and the weight of testimony are involved, the appellate court must extend considerable deference to the trial court’s factual findings. Houser, 36 S.W.3d at 71. In reviewing documentary evidence such as depositions, however, we extend no deference to the trial court’s findings. Ferrell v. Cigna Prop. & Cas. Ins. Co., 33 S.W.3d 731, 734 (Tenn.2000). Our standard of review of questions of law is de novo without a presumption of correctness. Perrin v. Gaylord Entm’t Co., 120 S.W.3d 823, 826 (Tenn.2003).

Compensability of Nursing Services

Tennessee Code Annotated section 50-6-204(a)(l) (1999) provides that “nursing services ... as ordered by the attending physician ... as may be reasonably required ...” are compensable. In Sullivan ex rel. Hightower v. Edwards Oil Co., 141 S.W.3d 544 (Tenn.2004), this Court construed section 50 — 6—204(a)(1) to require that nursing services be rendered by a professional nurse, rather than by a family member, in order to be compensable. Id. at 548. In Sullivan, we held that a mother was not entitled to compensation for the care she provided to her adult daughter because the mother was not a professional nurse. Id.

Here, however, Mrs. Long testified that she is a certified nurse technician. In Tennessee, certified nurse technicians, also called nurse aides, are licensed by the state Department of Health. See Tenn. Comp. R. & Regs. 1200-8-6-.15 (2005). The Department of Health defines certified nurse aides as “nursing personnel.” See id. at 1200—8—6—.01(33). Although Mrs. Long testified that she was not working as a nurse aide at the time of Long’s surgery, she testified that her certification and license were current at the time. Thus, she was “a person whom the medical profession recognizes as a nurse.” Sullivan, 141 S.W.3d at 548. Unlike the caregiver in Sullivan, Mrs. Long is a nursing professional licensed to give precisely the type of care required by her husband in this case.

Mid-Tennessee argues that because Mrs. Long rendered nursing services voluntarily and without charge to her husband, her services were merely “wifely duties” and are not compensable. However, we believe this argument penalizes the Longs for the situation that Mid-Tennessee created by refusing to pay for nursing care. Under the circumstances, where workers’ compensation benefits were denied, it was likely more economically feasible for the Longs to have Mrs. Long, a nursing professional, care for her husband rather than finding the resources to pay another professional. We see no reason and no statutory basis to require a family to hire a stranger to provide compensáble services when a member of the family is qualified to provide those sendees.

Tennessee Code Annotated section 50-6-204(a)(l) also requires that to be compensable, the nursing services must be “ordered by” the attending physician. Here, the record does not contain an express order from Dr. Rosen authorizing Long to receive home nursing services. Both Long and Mrs. Long testified, however, that because Long was in a full leg cast, had developed a staph infection, and was bedridden, he required continuous care. Moreover, they testified that they understood from- Dr. Rosen that Long required home nursing care.

As we -have often observed, the Workers’ Compensation Act is remedial in nature and is to be given a liberal and equitable construction in favor of workers. Sullivan Elec. Co. v. McDonald, 541 S.W.2d 112, 115 (Tenn.1976). We think that a physician discharging a patient to home, knowing that the patient will be confined to a bed and unable to ambulate or perform other functions without assistance, and knowing that the patient will require care such as changing wound dressings or requiring other such attention, must certainly contemplate that nursing services will be required. The statute requires only that a physician “order” the services, not that the order be reduced to writing. Here, the Longs’ testimony that they understood Dr. Rosen to authorize nursing services was unrebutted. Under these unique circumstances, therefore, it was error for the trial court to refuse to award compensation to Mrs. Long for her services.

Long argues that Mrs. Long’s compensation should • be based on her lost wages at Whirlpool, the job at which she was employed when she took leave to care for Long. However, the statute provides that it is the nursing services that are compensable, not Mrs. Long’s lost wages. Therefore, we remand to the trial court for a determination of the value of the nursing services rendered by Mrs. Long, based on the cost of obtaining comparable care from a similarly licensed certified nurse technician or nurse aide at the time of Long’s care.

Temporary Total Disability

We next address Long’s argument that because Mid-Tennessee did not or would not put him to work at a job meeting the light duty restrictions imposed by Dr. Rosen, Long is entitled to temporary-total disability benefits for the period between the date of his injury and the date of his surgery. As the Panel recognized, an employee is not entitled to temporary total disability benefits simply because the employer does not have an available job which meets the employee’s restrictions. Vinson v. Firestone Tire & Rubber Co., 655 S.W.2d 931, 932-33 (Tenn.1983). In Vinson, we held that an employee was not entitled to temporary total disability where she had been released to work with the restriction that she not be exposed to the fumes that had caused her injury, but where the employer either did not have a job available or would not make a job available to the employee. Id. We therefore reject Long’s argument that the trial court erred in denying him total temporary disability benefits.

Injury to the Body as a Whole

Long next argues that the trial court erred in declining to apportion his injury to the body as a whole. The trial court apportioned a 40% vocational disability to Long’s right foot only. Long’s complaint alleged injuries to his right foot, right ankle, right leg, and back, and further alleged that these injuries resulted in weight gain and sleep apnea. Mid-Tennessee argues that the medical proof does not support a finding that Long’s foot injury caused permanent injuries to other parts of the body. The trial court and the Panel agreed with Mid-Tennessee, holding that Long had failed to sufficiently establish causation and permanency for the other alleged injuries.

Injuries to the foot and to the leg are “scheduled” injuries, as they are provided for in Tennessee Code Annotated section 50-6-207(3)(A)(ii)(n) and (o) (1999). An injury to the back is not scheduled; nor is disability resulting from weight gain or sleep apnea. See id.

Although a disability limited to a scheduled member must be attributed exclusively to that member, where the injury has caused disability to a portion of the body that is not statutorily scheduled, recovery may be had for disability to the body as a whole. Thompson v. Leon Russell Enters., 834 S.W.2d 927, 929 (Tenn.1992). The mere fact that the AMA Guides provide a method for converting a scheduled member impairment to a whole body impairment does not permit an award for whole body disability. Rather, we must find a whole body impairment under Tennessee law. Id.; see also Reagan v. Tenn. Mun. League, 751 S.W.2d 842, 843 (Tenn.1988). Such an award is only appropriate if it is “shown that the scheduled member injury caused a permanent injury to an unscheduled portion of the body.” Thompson, 834 S.W.2d at 929. An award based on disability to the body as a whole is appropriate where, for example, an injury to the foot or leg causes an employee to limp or otherwise develop gait problems which cause permanent disability to the back. See, e.g., Riley v. Aetna Cas. & Sur., 729 S.W.2d 81, 84 (Tenn.1987); McWhirter v. Kimbro, 742 S.W.2d 255, 259 (Tenn.1987).

Here, there was no evidence of an injury to Long’s back or leg caused by the 1995 injury. There are notes in the medical record that Long complained of pain in his back, as well as speculation by Dr. Rosen that Long’s injury and its effect on his gait could cause Long to have back problems. Evidence of pain and speculation about back problems, however, is not sufficient to support a finding that Long has suffered a disability to the body as a whole.

As to the weight gain and sleep apnea, as the Panel noted, the record is devoid of evidence that those conditions are permanent. Both Dr. Noah and Dr. Paffrath declined to assess impairment ratings for the sleep apnea, and Dr. Noah specifically noted that when treated, sleep apnea does not cause permanent disability. In the absence of expert medical evidence establishing permanency for the conditions Long argues would support an award of disability to the body as a whole, we must affirm the trial court’s and the Panel’s decisions limiting Long’s award to his foot. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 458 (Tenn.1988) (expert medical evidence required to show permanence “in all but the most obvious cases”).

Limitation of Award to 40% of Foot

Finally, Long argues that the trial court should have awarded total permanent disability rather than limiting the award to 40% of his foot. He argues that the evidence showed he is totally vocationally disabled. Mid-Tennessee argues that the trial court and the Panel were correct in determining that Long is not totally disabled.

The degree of vocational disability is a question of fact “to be determined from all the evidence, including lay and expert testimony.” Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 629 (Tenn.1999). Although the degree of anatomical disability is a factor in the determination, “the ultimate issue is not the extent of anatomical disability but that of vocational disability.” Corcoran, 746 S.W.2d at 457.

The record shows that Long has a high school degree and has worked as an insurance agent. He has also worked as a supervisor for various employers. The evidence does not preponderate against the trial court’s award of 40% permanent disability to the scheduled member.

Conclusion

After reviewing the record and applicable authority, we affirm in part and reverse in part the decisions of the trial court and the Special Workers’ Compensation Appeals Panel and remand to the trial court for a determination of the value of the nursing services rendered by Mrs. Long. Costs of this appeal are taxed equally to the appellant, Drexel Wayne Long, and his sureties, and to the appellee, Mid-Tennessee Ford Truck Sales, Inc., for which execution may issue if necessary.

ADOLPHO A. BIRCH, JR., J., not participating.

      . The full text of the clause is:
      The employer or the employer's agent shall furnish free of charge to the employee such medical and surgical treatment, medicine, medical and surgical supplies, crutches, artificial members, and other apparatus, including prescription eyeglasses and eye wear, such nursing services or psychological services as ordered by the attending physician and hospitalization, including such dental work made reasonably necessary by accident as herein defined, as may be reasonably required....
      Tenn.Code Ann. § 50 — 6—204(a)(1).

      . In light of our decision that Long has failed to show that the weight gain and sleep apnea were permanent conditions, we decline to reach Long’s argument that the trial court and Panel erred in concluding that they were not caused by the 1995 injury. •


author: JANICE M. HOLDER, J.,

text:
    Michael R. MOODY v. STATE of Tennessee.
    Supreme Court of Tennessee, at Knoxville.
    Sept. 8, 2004 Session.
    Feb. 22, 2005.

      Richard L. Gaines, Knoxville, Tennessee, for the Appellant, Michael R. Moody.
    Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Brent C. Cherry, Assistant Attorney General, for the Appellee, State of Tennessee.
   OPINION

JANICE M. HOLDER, J.,

delivered the opinion of the court,

in which FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON and WILLIAM M. BARKER, JJ., and J.S. DANIEL, Sp.J. joined.

The petitioner, Michael Robert Moody, filed a “Motion to Correct Errors in Judgment” in which he claimed that the two sentences requiring him to register as a sexual offender are illegal. The trial court dismissed the motion, and the Court of Criminal Appeals denied Moody’s request for discretionary review through the common law writ of certiorari. We conclude that the writ of certiorari is not available to review the denial of a motion to correct an illegal sentence and that a habeas corpus action, not a motion, is the proper procedure for collaterally attacking an illegal sentence. Accordingly, we affirm the judgment of the Court of Criminal Appeals.

BACKGROUND

In November 1999, the petitioner, Michael' Robert Moody, was convicted of aggravated assault and spousal sexual battery. The trial court sentenced him to consecutive sentences of six years for aggravated assault and four years for spousal sexual battery. By agreement of the parties, Moody was placed on probation under an enhanced supervision program applicable to sexual offenders. Both judgment forms required Moody to register with the Tennessee Bureau of Investigation as a convicted sexual offender. Moody neither sought a direct appeal of his convictions and sentences nor challenged them in a post-conviction or habeas corpus proceeding. In May 2000, the trial court revoked Moody’s probation and ordered Moody to serve his sentences in confinement. The Court of Criminal Appeals affirmed.

In January 2003, Moody, filed a pro se “Motion to Correct Errors in Judgment” in the trial court in which he challenged the legality of the sentences requiring him to register as a sexual offender. The trial court denied the motion without addressing the registration issue, and Moody appealed the denial by filing a petition for writ of certiorari in the Court of Criminal Appeals. The Court of Criminal Appeals recognized that spousal sexual battery is not listed as a “sexual offense” requiring registration. However, the court held that Moody should have sought relief through a habeas corpus petition rather than by filing a motion to correct errors in the judgment in the trial court and a petition for writ of certiorari on appeal. We granted review and appointed counsel to represent Moody for purposes of this appeal.

ANALYSIS

Moody contends that aggravated assault and spousal sexual battery are not sexual offenses for registration purposes under the Sexual Offender Registration and Monitoring Act. See Tenn.Code Ann. § 40-39-102(3) (1997) (defining “sexual offense” under the act). Moody therefore asserts that the registration requirement renders his sentences illegal and that the Court of Criminal Appeals erred in refusing to review his claim through a writ of certiorari. We affirm the denial of certio-rari review and take this opportunity to clarify the proper procedure for seeking review of illegal sentence claims at both the trial level and on appeal.

The common law writ of certiorari has been codified in Tennessee Code Annotated section 27-8-101(2000), which provides:

The writ of certiorari may be granted whenever authorized by law, and also in all cases where an inferior tribunal, board, or officer exercising judicial functions has exceeded the jurisdiction conferred, or is acting illegally, when, in the judgment of the court, there is no other plain, speedy, or adequate remedy. This section does not apply to actions governed by the Tennessee Rules of Appellate Procedure.

Generally, the writ of certiorari is limited in application and may not ordinarily be used “to inquire into the correctness of a judgment issued by a court with jurisdiction.” State v. Adler, 92 S.W.3d 397, 401 (Tenn.2002) (citing State v. Johnson, 569 S.W.2d 808, 815 (Tenn.1978)). The writ properly applies, however, when the action of the trial court is without legal authority and where no other “plain, speedy or adequate remedy” is available. See Adler, 92 S.W.3d at 401; Tenn.Code Ann. § 27-8-101 (2000). While Moody clearly is challenging the legal authority of the trial court, it is equally clear that another “plain, speedy, or adequate remedy” is available to Moody.

Moody could have presented his illegal sentence claims in a habeas corpus proceeding with an appeal as of right from the denial of habeas relief. See Tenn.Code Ann. § 29-21-127(a) (2000); Tenn. R.App. P. 3(b). Habeas corpus relief is proper if the petition demonstrates that the challenged judgment is void, as opposed to merely voidable. Taylor v. State, 995 S.W.2d 78, 83 (Tenn.1999). A judgment is void when “ ‘it appears upon the face of the judgment or the record of the proceedings upon which the judgment is rendered’ that a convicting court was without jurisdiction or authority to sentence a defendant, or that a defendant’s sentence of imprisonment or other restraint has expired.” State v. Ritchie, 20 S.W.3d 624, 630 (Tenn.2000) (citations omitted).

Despite the availability of a habeas corpus action for illegal sentence claims, the Court of Criminal Appeals has occasionally reviewed these claims through the common law writ of certiorari. See Cox v. State, 53 S.W.3d 287, 294 (Tenn.Crim.App.2001). In Cox, the Court of Criminal Ap peals recognized that our decision in State v. Burkhart, 566 S.W.2d 871 (Tenn.1978), has been read as supporting the propriety of a motion to correct an illegal sentence and of a writ of certiorari as the method of review. Cox, 53 S.W.3d at 291. In Burkhart, the petitioner filed the functional equivalent of a motion to correct an illegal sentence in the trial court. The Court of Criminal Appeals denied relief, holding that the trial judge could not correct the judgment after it had become final although the sentence was illegal. We reversed the intermediate appellate court, holding that, “As a general rule, a trial judge may correct an illegal, as opposed to a merely erroneous, sentence at any time, even if it has become final.” Burkhart, 566 S.W.2d at 873.

We adhere to the rule stated in Burkhart that a trial judge may correct an illegal sentence at any time. However, Cox’s reliance on Burkhart as supporting certiorari review of the denial of a motion to correct an illegal sentence is misplaced. Burkhart predated the Tennessee Rules of Appellate Procedure, which became effective on July 1, 1979. A principal purpose of the Rules of Appellate Procedure is to bring together in one place a simplified, coherent, and modern body of law. Advisory Commission Comments to Tenn. R.App. P. 1. These rules are intended to replace the appellate court procedure that was governed by scattered provisions of the Tennessee Code and the rules and decisions of the appellate courts. Id. Tennessee Rule of Appellate Procedure 3(b) does not authorize a direct appeal of a dismissal of a motion to correct an illegal sentence, the method of attack utilized by Moody. We clarify that the proper procedure for challenging an illegal sentence at the trial level is through a petition for writ of habeas corpus, the grant or denial of which can then be appealed under the Rules of Appellate Procedure. See Stephenson v. Carlton, 28 S.W.3d 910, 912 (Tenn.2000) (holding that an illegal and void sentence was properly challenged in a petition for writ of habeas corpus).

Moody acknowledges that he failed to comply with the procedural requirements for a habeas corpus action. See TenmCode Ann. § 29-21-107 (2000). The procedures for filing a habeas corpus petition are codified in Tennessee Code Annotated sections 29-21-101 through 29-21-130. These procedures are “mandatory and must be followed scrupulously.” Archer v. State, 851 S.W.2d 157,165 (Tenn.1993). However, there is no habeas corpus statute of limitations. See Hickman v. State, 153 S.W.3d 16, 19 (Tenn.2004). Because this remedy exists, the writ of certio-rari is not available to review an illegal sentence claim that has been presented through a motion. Cf. Adler, 92 S.W.3d at 401 (holding that because no remedy exists for an erroneous grant or denial of an expungement order, the writ of certiorari is available as a method of seeking review of such an error). Therefore, we deny Moody’s writ of certiorari without prejudice to a habeas corpus action presenting his illegal sentence claims.

CONCLUSION

A habeas corpus action is the proper procedure for collaterally challenging an illegal sentence. Although a trial court may correct an illegal sentence at any time, appellate courts may not review the denial of a motion to correct an illegal sentence through the common law writ of certiorari. Accordingly, we affirm the judgments of the lower courts dismissing Moody’s case.

The record indicates that Moody is indigent. Therefore, the costs of appeal are taxed to the State of Tennessee.

      . A 2002 amendment redesignated subsection (3) as (5). See Tenn.Code Ann. § 40-39-102 (2003). The definition of “sexual offense” is currently codified under § 40-39-202(16) (2004 Supp.). See 2004 Tenn. Pub. Acts, c. 921 § 4 (effective August 1, 2004).

      . A void or illegal sentence also may be challenged collaterally in a post-conviction proceeding when the statutory requirements are met. See State v. Mahler, 735 S.W.2d 226, 228 (Tenn.1987).


text:
    TENNESSEE WASTE MOVERS, INC. v. LOUDON COUNTY, et al.
    Supreme Court of Tennessee, at Knoxville.
    Sept. 8, 2004 Session.
    March 18, 2005.

      Jennifer Lynn Brundige, Michael D. Pearigen, and William Harris Farmer, Nashville, Tennessee, for the Appellants Petitioner, Tennessee Waste Movers, Inc.
    John C. Burgin, Jr., and Edwin Hope Rayson, Knoxville, Tennessee, and Harvey L. Sproul, Lenoir City, Tennessee, for the Appellee-Respondents, Loudon County, Tennessee and Loudon County Commission.
   OPINION

JANICE M. HOLDER, J.,

delivered the opinion of the court,

in which FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON and WILLIAM M. BARKER, JJ., and J.S. DANIEL, Sp.J. joined.

We granted review in this case to determine the proper standard of review required by Tennessee Code Annotated section 68-21 l-704(c) (1996). We hold that the de novo review required by Tennessee Code Annotated section 68-211-704(c) requires the trial court to conduct an independent evaluation of all of the evidence before it. We overrule Tucker v. Humphreys County, 944 S.W.2d 613 (Tenn.Ct.App.1996), upon which the Court of Appeals relied, and reverse the judgment of the Court of Appeals. We remand this case to the chancery court for a review of the county commission’s findings using the proper de novo standard as required by Tennessee Code Annotated section 68-211-704(c) and this decision.

I. FACTUAL AND PROCEDURAL BACKGROUND

Tennessee Waste Movers, Inc. (“TWM”) owns and operates an eleven-acre landfill in the Matlock Bend Industrial Park in Loudon County. In July 2001, TWM filed an application with the Loudon County Commission (“the Commission”) requesting permission to expand the existing landfill operation horizontally by twelve acres. The requested expansion would extend the life of the landfill by ten years.

At public hearings held on September 13 and October 1, 2001, a developer whose land adjoins the proposed landfill’s boundary objected to the expansion. Real estate experts testified regarding the economic effect the landfill would have on real estate values. Following the hearing, the Commission denied TWM’s request, finding that TWM’s requested expansion would expose a planned golf community to the unsightly landfill, would adversely affect property values, and would negatively impact tax revenues. TWM appealed to the chancery court pursuant to Tennessee Code Annotated sections 27-8-102 (2000) (statutory writ of certiorari) and 68-211-704(c) (1996) (“the Jackson Law”).

Reviewing the Commission’s ruling, the chancellor considered the evidence presented to the Commission and also allowed the parties to present additional evidence. The chancellor stated that he would have permitted the expansion had he heard the case initially because the “proposed landfill produces no offensive odors” and could be screened from the development. In addition, the proposed expansion would cause fewer problems than existing operations in the industrial park.

Despite these observations, the chancellor denied TWM’s application, stating, “I’m not inclined to jump in and start substituting my personal opinion for the opinion of the [Commission] simply because had I been personally judging those facts, I would have found in favor of [TWM].” The Court of Appeals affirmed the trial court, relying upon the standard of review set forth in its decision in Tucker v. Humphreys County, 944 S.W.2d 613 (Tenn.Ct.App.1996), and holding that the trial court “correctly refused to substitute its independent judgment for that of the Commission.” We granted review.

II. ANALYSIS

Tennessee Code Annotated section 68-211-701 et seq. (1996), commonly referred to as “the Jackson Law,” details the manner in which new landfills are to be built in Tennessee. The county commission approves the plans for any new landfill and must consider eight specific criteria in considering the request for approval. Tenn. Code Ann. §§ 68-211-701, -704(b). Judicial review of the commission’s determination “shall be a de novo review before the chancery court for the county in which the landfill is proposed to be located.” Tenn. Code Ann. § 68-211-704(c) (1996) (emphasis added).

A. Meaning of De Novo Review

The scope of review in this case is provided by the Jackson Law itself, which states that “judicial review of the legislative body’s determination shall be a de novo review before the chancery court for the county in which the landfill is proposed to be located.” Tenn.Code Ann. § 68-211-704(c) (1996). We find the statutory language to be unambiguous and clear on its face. Therefore, we must interpret the statute in accordance with the plain and ordinary meaning of its language. See Galloway v. Liberty Mut. Ins. Co., 137 S.W.3d 568, 570 (Tenn.2004); Gleaves v. Checker Cab Transit Corp., 15 S.W.3d 799, 802-03 (Tenn.2000). “If the words of a statute plainly mean one thing they cannot be given another meaning by judicial construction.” Henry v. White, 194 Tenn. 192, 250 S.W.2d 70, 72 (1952).

We now look to the plain meaning of the words “de novo.” Black’s Law Dictionary defines “de novo judicial review” as a “nondeferential review of an administrative decision, usually through a review of the administrative record plus any additional evidence the parties present.” Black’s Law Dictionary 864 (8th ed.2004). This Court has held that a de novo review in the circuit court requires the case to be tried as if it had originated there. Odle v. McCormack, 185 Tenn. 439, 206 S.W.2d 416, 419 (1947) (citation omitted); see also Cooper v. Alcohol Comm’n. of Memphis, 745 S.W.2d 278, 281 (Tenn.1988) (holding that “[a] hearing de novo requires the trial court to reconsider and redetermine both the facts and the law from all the evidence as if no such determination had been previously made”). The scope of the chancery court’s de novo review required by statute is “not confined to a determination of whether the evidence preponderates in favor of the determination of the administrative board and no presumption of correctness attaches to the decision.” Cooper v. Williamson County Bd. of Educ., 746 S.W.2d 176, 181 (Tenn.1987); accord Van Hooser v. Warren County Bd. of Educ., 807 S.W.2d 230, 236 (Tenn.1991). Furthermore, we have held that a trial court erred by “limiting the proof to the issue of whether the administrative proceedings were illegal, arbitrary, or capricious.” Frye v. Memphis State Univ., 671 S.W.2d 467, 469 (Tenn.1984).

We have also held that the reviewing court is not limited to the administrative record. A statute requiring de novo judicial review means “a new hearing in the chancery court based upon the administrative record and any additional or supplemental evidence which either party wishes to adduce relevant to any issue.” Id. We have interpreted other statutes calling for a de novo review to require that “the chancellor base[] his ruling on the evidence presented to him at trial, de novo,” and that “the chancellor must substitute his judgment for that of the [administrative] board.” Van Hooser, 807 S.W.2d at 236-37 (citation omitted); accord Frye, 671 S.W.2d at 469.

Although the Jackson Law mandates that chancery courts conduct a de novo review, the only published Tennessee case interpreting the standard of review under the Jackson Law has concluded otherwise. Thus, we now turn to an examination of Tucker.

B. The Tucker Decision

The plaintiffs in Tucker submitted a request for a permit to construct a landfill to the defendant commissioners. Tucker, 944 S.W.2d at 615. The Board rejected the plaintiffs’ request, and the plaintiffs appealed to the local chancery court. Id. at 616. The trial court stated that it would conduct a new hearing with each party having the right to present testimony and other evidence material to the issues. No hearing was held, however, and the chancellor instead ruled “that the method of judicial review prescribed by the Jackson [l]aw shall be by Common Law Writ of Certiorari on the record” of the Commission meeting “to determine whether or not the ... Commission acted illegally or beyond the scope of its authority.” Id.

The Court of Appeals concluded that “de novo review” of the denial of a landfill permit allows the parties to present additional or supplemental proof but does not permit the trial court to substitute its judgment for that of the county commission. Id. at 619. The intermediate' appellate court held that de novo review was required only as to “the factual question of whether a fact or facts exist which justified the Board in refusing the permit.” Id. at 621.

We take this opportunity to overrule Tucker’s interpretation of the standard of review required by the Jackson Law and to clarify that the standard of review is not dependent upon the standards of review required by either the common law writ of certiorari or the statutory writ of certiorari. We recognize that TWM properly filed its appeal under a statutory writ of certiorari and that the statutory writ may provide for a form of trial de novo. However, “the meaning of ‘trial de novo’ in each statute is ... dictated by the wording and context of the statute in which it appears and by the nature of the administrative body, decision and procedure being used.” Cooper, 746 S.W.2d at 179. In this case the Jackson Law sets forth the standard of review and requires a de novo review in landfill permit cases. We hold that the “de novo review” required by the Jackson Law permits the trial court to consider any new evidence and requires the trial court to consider the facts and determine the law as if no prior determination had been made. See Cooper, 745 S.W.2d at 281; Odle, 206 S.W.2d at 419. We overrule Tucker and reiterate that de novo review under the Jackson Law requires the exercise of the chancellor’s independent judgment in reviewing the county commission’s decision.

III. CONCLUSION

The plain meaning of Tennessee Code Annotated section 68-211-704(c) (1996) requires a de novo review by the chancery court unrestricted by any deference to the county commission’s decision. We overrule Tucker v. Humphreys County and hold that de novo review under the Jackson Law requires a new trial and the exercise of the chancellor’s independent judgment in reviewing the Commission’s decision. Accordingly, we reverse the judgment of the Court of Appeals and remand the case to the trial court. On remand, the trial court shall make an independent determination that is untainted by the county commission’s prior decision.

Costs of this appeal are taxed to the appellees, Loudon County and Loudon County Commissioners, Inc., and their sureties, for which execution may issue if necessary.

      . Tennessee Code Annotated section 68-211-704(b) (1996) states:
      (b) The following criteria shall be considered in evaluating such construction:
      (1) The type of waste to be disposed of at the landfill;
      (2) The method of disposal to be used at the landfill;
      (3) The projected impact on surrounding areas from noise and odor created by the proposed landfill;
      (4) The projected impact on property values on surrounding areas created by the proposed landfill;
      (5) The adequacy of existing roads and bridges to carry the increased traffic projected to result from the proposed landfill;
      (6) The economic impact on the county, city, or both;
      (7) The compatibility with existing development or zoning plans; and
      (8) Any other factor which may affect the public health, safety or welfare.

      . Under a common law writ of certiorari, the scope of review is limited to a determination of whether "the administrative body acted within its jurisdiction, or acted arbitrarily, capriciously, or illegally” and generally does not extend to a redetermination of the facts found by the administrative body. Cooper, 746 S.W.2d at 179. A statutory writ of certio-ran is authorized to correct an inferior tribunal’s errors of fact and law and provides for a form of a trial de novo. Boyce v. Williams, 215 Tenn. 704, 389 S.W.2d 272, 276 (1965). The question of whether an appeal of an administrative body’s decision falls within a common law or statutory writ of certiorari can be a complex one. See Ben H. Cantrell, Review of Administrative Decisions, 4 Mem. St. U.L.Rev. 19 (1973).


author: JANICE M. HOLDER, J„

text:
    STAUBACH RETAIL SERVICES-SOUTHEAST, LLC v. H.G. HILL REALTY CO.
    Supreme Court of Tennessee, at Nashville.
    Oct. 7, 2004 Session.
    March 22, 2005.
    Rehearing Denied April 21, 2005.

      Barbara Hawley Smith and Eugene N. Bulso, Jr., Nashville, Tennessee, for the Defendant-Appellant, H.G. Hill Realty Co.
    Brigid M. Carpenter and Glenn D. Tack-ett, Jr., Nashville, Tennessee, for the Plaintiff-Appellee, Staubach Retail Services-Southeast, LLC.
   OPINION

JANICE M. HOLDER, J„

delivered the opinion of the court,

in which FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON and WILLIAM M. BARKER, JJ., and ALLEN W. WALLACE, Sp. J., joined.

We granted this appeal to determine whether an unexecuted brokerage agreement incorporated into an executed lease constitutes an enforceable contract, thereby requiring payment of a brokerage fee to one of the real estate brokers who provided services pursuant to the unexe-cuted agreement. We conclude that all parties to the brokerage agreement assented to its terms and that the brokerage agreement’s “occupancy” requirement was satisfied. Accordingly, we hold that the agreement is enforceable, and we affirm the Court of Appeals’ award of the unpaid commission to the real estate broker.

H.G. Hill Realty Company (“H.G. Hill”) owned a tract of real property in Nashville, Tennessee. H.G. Hill retained a broker, Southeast Venture, LLC (“Southeast Venture”), to locate a long-term tenant for the property. Staubach Retail Services-Southeast, LLC (“Staubach”) contacted Southeast Venture and expressed an interest in the property on behalf of its client, dekor, Inc. (“dekor”), a home improvement retailer based in Georgia.

On February 23, 2000, H.G. Hill and dekor entered into a “Build-to-Suit Retail Lease” (“lease”) in which H.G. Hill agreed to construct an 80,000 square-foot building for dekor’s use as a retail store. Article 44 of the lease provided that:

Landlord covenants and agrees to pay Broker’s commission in accordance with a separate agreement executed by and between Landlord and Broker, and further agrees to indemnify Tenant for all claims and demands made by Broker. ... The terns and provisions of that certain Brokerage Agreement, an unexecuted photocopy of which is attached hereto as Exhibit “N” and incorporated herein by reference, are incorporated into this Lease and made a pari hereof.

(emphasis supplied.)

Exhibit “N” of the lease provides that H.G. Hill, Southeast Venture, and Staubach entered into a “Brokerage Agreement” in anticipation of the lease. According to the brokerage agreement,

[t]he Owner agrees to pay a leasing commission of Five Hundred Thousand Dollars ($500,000.00) to the Broker and Co-Broker, for the development of an 80,000 square foot retail building[.j ... The leasing commission shall be payable one-half upon execution of the lease and one-half upon occupancy of the Property by the Tenant.

Consistent with Article 44, the signatures of the parties’ representatives do not appear on Exhibit “N.”

H.G. Hill satisfied the first installment of the leasing commission by paying $125,000 to Southeast Venture and $125,000 to Staubach. Pursuant to the lease agreement, dekor readied the building for retail use, accepting delivery of store fixtures, hiring employees, and installing locks. However, dekor did not open the store for business and defaulted on the lease before paying the first month’s rent. On September 21, 2001, H.G. Hill and dekor entered into an agreement providing for termination of the lease in return for a payment of $1,275,000 by dekor.

Staubach filed an action against H.G. Hill seeking to enforce the terms of the brokerage agreement either as a party to the agreement or as a third-party beneficiary of the lease. Staubach filed a motion for summary judgment, claiming that it was entitled to its portion of the second installment of the commission because de-kor had occupied the building prior to default on the lease. The trial court granted Staubach’s motion and ordered H.G. Hill to pay Staubach its portion of the second installment of the brokerage commission.

On appeal, the Court of Appeals affirmed the trial court’s judgment. The intermediate appellate court concluded that H.G. Hill assented to the terms of the brokerage agreement attached to the lease by executing the lease agreement. The Court of Appeals further concluded that Staubach was entitled to its portion of the second installment of the leasing commission because dekor occupied the building prior to defaulting on the lease. We granted review.

ANALYSIS

A contract “must result from a meeting of the minds of the parties in mutual assent to the terms, must be based upon a sufficient consideration, free from fraud or undue influence, not against public policy and sufficiently definite to be enforced.” Doe v. HCA Health Servs, of Tenn., Inc., 46 S.W.3d 191,196 (Tenn.2001) (citations omitted). In determining mutuality of assent, courts must apply an objective standard based upon the parties’ manifestations. T.R. Mills Contractors, Inc. v. WRH Enters., LLC, 93 S.W.3d 861, 866 (Tenn.Ct.App.2002).

A determination of the parties’ intentions generally involves a question of law appropriate for summary judgment provided that the moving party has established the absence of a genuine issue as to any material fact. See Tenn. R. Civ. P. 56.04; Planters Gin Co. v. Fed. Compress & Warehouse Co., 78 S.W.3d 885, 890 (Tenn.2002). In reviewing the trial court’s grant of summary judgment, this Court must review the record de novo without a presumption of correctness. See Mooney v. Sneed, 30 S.W.3d 304, 306 (Tenn.2000).

Although the lease refers to a “separate agreement executed by and between Landlord and Broker,” the parties never executed a separate agreement. The only evidence of an agreement between H.G. Hill, Staubach, and Southeast Venture is the unexecuted agreement attached to the lease. However, a written contract is not required to be signed to be binding on the parties. T.R. Mills Contractors, Inc., 93 S.W.3d at 865. Moreover, H.G. Hill signed a lease agreement expressly incorporating the terms of the unexecuted brokerage agreement. This Court has previously held that a writing may be incorporated by reference into a written contract, thereby requiring both writings to be construed together. See McCall v. Towne Square, Inc., 503 S.W.2d 180, 183 (Tenn.1973). Because the terms of the lease expressly incorporated the unexecuted brokerage agreement into the lease, the language of the brokerage agreement (Exhibit “N”) became a part of the lease. By signing the lease, H.G. Hill accepted the terms of the brokerage agreement.

In an attempt to create a genuine issue of material fact, H.G. Hill submitted to the trial court affidavits of James W. Granberry (“Cranberry”), its Executive Vice President of Development, and Celeste Patterson (“Patterson”), its Chief Financial Officer, in which they maintained that they did not assent to the unexecuted brokerage agreement attached to the lease. These affidavits further state that H.G. Hill agreed that the second installment of the commission would be due when dekor began paying rent, an event that did not occur. The parol evidence rule does not permit contracting parties to “use extraneous evidence to alter, vary, or qualify the plain meaning of an unambiguous written contract.” GRW Enters, v. Davis, 797 S.W.2d 606, 610 (Tenn.Ct.App.1990). Furthermore, to allow a party to a contract to admit that the party signed the contract but to deny that the terms of the contract express the party’s agreement would destroy the value of contracts. See Giles v. Allstate Ins. Co., 871 S.W.2d 154, 157 (Tenn.Ct.App.1993). H.G. Hill could have refused to sign the lease if it disagreed with the terms of the brokerage agreement attached to the lease. Instead, H.G. Hill paid the first installment of the commission in accordance with the terms of the brokerage agreement, thus expressing its assent to its terms.

Similarly, Staubach and Southeast Venture demonstrated them assent to the brokerage agreement. Although Staubach did not sign the brokerage agreement, its assent to the agreement is demonstrated by its action to enforce the agreement. See Hillard v. Franklin, 41 S.W.3d 106, 112 (Tenn.Ct.App.2000). Southeast Venture’s acceptance of its share of the first installment of the commission demonstrates Southeast Venture’s acceptance of its terms. See T.R. Mills Contractors, Inc., 93 S.W.3d at 866 (noting that assent may be established by the parties’ course of dealings). When a party who has not signed a contract demonstrates its assent by performing pursuant to the contract and making payments conforming to the contract’s terms, that party is estopped from denying the binding effect of the contract. Id. at 866; see Hoyt v. Hoyt, 213 Tenn. 117, 372 S.W.2d 300, 305 (1963); R.J. Betterton Mgt. Servs., Inc. v. Whittemore, 769 S.W.2d 214, 216 (Tenn.Ct.App.1988).

The evidence establishes that all three parties to the unexecuted brokerage agreement assented to its terms. Thus, we conclude that the brokerage agreement is a binding contract under which Staubach may recover its portion of the second installment of the commission if the contract’s conditions were satisfied.

Although the brokerage agreement requires payment of the second installment of the commission “upon occupancy,” the term “occupancy” is not defined in either the brokerage agreement or the lease. However, we are unable to conclude that the term is ambiguous. A contract term is not ambiguous merely because the parties to the contract may interpret the term in different ways. See Johnson v. Johnson, 37 S.W.3d 892, 896 (Tenn.2001).

We are required to ascertain the intention of the parties by using the usual, natural, and ordinary meaning of the language contained in the contract. Guiliano v. Cleo, Inc., 995 S.W.2d 88, 95 (Tenn.1999). Black’s Law Dictionary 1108 (8th ed. 2004) defines “occupancy” in part as “the act, state or condition of holding, possessing, or residing in or on something; actual possession, residence, or tenancy, especially] of a dwelling or land.” Furthermore, “the term denotes whatever acts are done on the land to manifest a claim of exclusive control and to indicate to the public that the actor has appropriated the land.” Id.

In the months prior to its breach, dekor arranged for the installation of fixtures, an energy management system, fighting, an audio system, and a security system. During the spring of 2001, the construction company’s locks were removed, and de-kor’s locks were installed. The company accepted delivery of store fixtures and shelving valued at more than $100,000 as well as kitchen equipment for display purposes. The company hired a general manager, who conducted interviews at the store and hired nine employees to serve as the store’s managerial staff. In addition, during late May and early June of 2001, the general manager went to the building on a daily basis. We conclude these facts are sufficient to establish dekor’s “occupancy” of the premises prior to termination of the lease, thus satisfying the terms of the brokerage agreement.

CONCLUSION

We hold that the unexecuted brokerage agreement is a valid contract to which H.G. Hill, Staubach, and Southeast Venture demonstrated their assent and that dekor occupied the premises prior to the termination of the lease. Accordingly, Staubach is entitled to one-half of the second installment of the commission from H.G. Hill. We affirm the judgment of the Court of Appeals, which affirmed the trial court’s granting of summary judgment, and remand the case to the trial court for further proceedings consistent with this opinion.

The costs of appeal are assessed to the appellant, H.G. Hill Realty Co., and its sureties for which execution may issue if necessary.

      . The parties have neither briefed nor argued the effect of this settlement upon the rights of the parties. Accordingly, we express no opinion as to the effect of this settlement.

      . Staubach further maintained it could recover its portion of the second installment of commission under the lease as a third-party beneficiary. Because we have determined that Staubach may recover as a party to the brokerage agreement, we need not address this issue.