985 S.W.2d 959 | Tenn. | 1999
Lead Opinion
OPINION
In this workers’ compensation action, the trial court determined that Wayne Eldred Hill, the employee, was permanently and totally disabled. Pursuant to Tenn.Code Ann. § 50-6-208(a), the court apportioned 10 percent of the award to the employer and 90 percent of the award to the Second Injury Fund. The case was referred to the Special Workers’ Compensation Appeals Panel for findings of fact and conclusions of law pursuant to Tenn.Code Ann. § 50-6-225(e). The Appeals Panel modified the award by apportioning 65 percent to the employer and 35 percent to the Second Injury Fund pursuant to Tenn.Code Ann. § 50-6-208(b).
We granted CNA Insurance Company’s
The employee managed a convenience store owned by the employer. In January 1992, he sustained back and pelvic injuries in an automobile accident which occurred in the course and scope of his employment. For these injuries, he accepted a settlement award of 35 percent permanent partial disability. While recuperating, the employee suffered a non-work-related injury to his brain,
The employee returned to work in April 1993. Subsequently, in October 1993, he developed a work-related condition in his right upper arm which was diagnosed as carpal tunnel syndrome. The employee continued to work, and in January 1995, he underwent surgery to correct the carpal tunnel syndrome. He again returned to work, but in October 1995, he resigned because of psychological problems.
The trial court found that the employee was permanently and totally disabled as a result of the effects of the psychological problems he developed from a combination of his injuries. Considering the employee as if he had incurred no prior injuries, the trial court determined that he would have suffered a 10 percent permanent partial vocational disability from the physical and psychological effects of the carpal tunnel syndrome. Pursuant to Tenn.Code Ann. § 50-6-208(a),
On review, the Special Workers’ Compensation Appeals Panel agreed that the employee was permanently and totally disabled as a result of the “emotional disability jointly caused by the hemangioma and the carpal tunnel syndrome.” The panel held, however, that such permanent and total disability mandated the application of Tenn.Code Ann. § 50-6-208(b),
As to findings of fact by the trial court, our review is de novo upon the record accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. § 50-6-225(e)(2)(Supp.l997); Jones v. Sterling Last Corp., 962 S.W.2d 469, 471 (Tenn.1998).
The issue in this case is whether the trial court correctly apportioned the award between the employer and the Second Injury Fund under Tenn.Code Ann. § 50-6-208(a) rather than under Tenn.Code Ann. § 50-6-208(b). We recently addressed the apportionment of liability for subsequent injuries in Bomely v. Mid-America Corp., 970 S.W.2d 929 (Tenn.1998). In Bomely, we held that the Second Injury Fund is liable under subsection (a) if (1) the employee has previously sustained a permanent physical disability from any cause or origin, either compensable or noncompensable, and (2) the employee becomes permanently and totally disabled as the result of a subsequent com-pensable injury. Id. at 934. In such a case, the employer is responsible only for the disability that would have resulted from the subsequent injury had the earlier injury or injuries not existed. Bomely, 970 S.W.2d at 934. Consequently, the Second Injury Fund is liable for the remainder of the award.
In cases where Tenn.Code Ann. § 50-6-208(a) is applicable, “it is important for trial courts to make an explicit finding of fact regarding the extent of vocational disability attributable to the subsequent or last injury, without consideration of any prior injuries.” Id. The trial court made such an explicit finding in this ease. Although the panel agreed with this finding, the panel nevertheless apportioned liability under Tenn.Code Ann. § 50-6-208(b). At the time this case was reviewed, however, the panel did not have the benefit of this Court’s decision in Bomely.
We find that the facts before us satisfy the requirements of Tenn.Code Ann. § 50-6-208(a), and thus, we affirm the trial court’s ruling. The employee had sustained injuries in 1992 from “any cause or origin,” to wit: the employment-related automobile accident, which caused permanent disability; the employer had notice of the employee’s preexisting conditions; and the employee subsequently became permanently and totally disabled as a result of the later compensa-ble injury occurring in 1993. See Bomely, 970 S.W.2d at 937; Love v. American Olean Tile Co., 970 S.W.2d 440, 443 (Tenn.1998). The employer is therefore responsible only for the disability that would have resulted from the last injury as if the employee had suffered no previous permanent injuries.
The trial court correctly rated the employee’s permanent vocational disability resulting from the last injury (carpal tunnel syndrome) without consideration of any prior injuries. The trial court found that this rating should be 10 percent.
Accordingly, we hold that the trial court correctly apportioned 10 percent of the permanent and total disability award to the employer to reflect the disability resulting from the last compensable injury. The re
For the foregoing reasons, the judgment of the trial court is affirmed. Costs are taxed to the Second Injury Fund.
. CNA Insurance Company is the employer’s insurance carrier.
. The non-work related injury, Hemangioma, is described as bleeding in the brain. It was considered a non-work-related injury because it was determined to be the result of a congenital condition.
. Subsection (a)(1) of Tenn.Code Ann. § 50-6-208 (Supp.1997) provides in pertinent part: "If an employee has previously sustained a permanent physical disability from any cause or origin and becomes permanently and totally disabled through a subsequent injury, such employee shall be entitled to compensation from such employee’s employer or the employer’s insurance company only for the disability that would have resulted from the subsequent injury, and such previous injury shall not be considered in estimating the compensation to which such employee may be entitled ...." (emphasis added).
.Subsection (b)(1)(A) of Tenn.Code Ann. § 50-6-208 (Supp.1997) provides: "In cases where the injured employee has received or will receive
. The record reveals that the trial court made an explicit finding that the 10 percent permanent partial disability rating assessed to the carpal tunnel syndrome included that portion of the employee’s psychological problems attributable to this last injury.
. The combined awards in this case (35 percent and 10 percent) equal 45 percent.
Concurrence Opinion
Justice, concurring.
I concur in the majority’s holding that this case falls within the purview of Tenn. Code
Ann. § 50-6-208(a). I, however, continue to adhere to my dissent in Bomely v. Mid-America, Corp., 970 S.W.2d 929 (Tenn.1998), in which I concluded that Tenn. Code Ann. § 50-6-208(a) is applicable when there is a subsequent injury and the employee is rendered permanently and totally disabled. Subsection (b), however, should apply only when the employee is still able to earn a wage or be gainfully employed but has received compensable vocational disabilities that exceed 100 percent or 400 weeks of compensation.
