wayne-eldred-hill-v-cna-insurance-and-larry-brinton-jr-director ( 1999 )


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  •                    IN THE SUPREME COURT OF TENNESSEE
    AT KNOXVILLE
    FILED
    WAYNE ELDRED HILL,               )    FOR PUBLICATION
    )
    Plaintiff/Appellee,         )
    )    FILED:        January 4, 1999
    JANUARY 4, 1999
    v.                               )
    )
    CNA INSURANCE COMPANY            )    KNOX COUNTY
    )                  Cecil W. Crowson
    Defendant/Appellee          )
    and                              )    HON. FREDERICK K. MCDONALD,
    Appellate Court Clerk
    LARRY BRINTON, JR., DIRECTOR     )      CHANCELLOR
    OF THE DIVISION OF WORKERS’      )
    COMPENSATION, TENNESSEE          )
    DEPARTMENT OF LABOR,             )    NO. 03-S-01-9608-CH-00086
    SECOND INJURY FUND,              )
    )
    Defendant/Appellant.        )
    For Appellee Hill:                    For Appellant:
    DAVID H. DUNAWAY                      JOHN KNOX WALKUP
    LaFollette, TN                        Attorney General and Reporter
    For Appellee CNA Ins. Co.:            DIANNE STAMEY DYCUS
    Senior Counsel
    LINDA J. HAMILTON MOWLES              Nashville, TN
    Knoxville, TN
    O P I N I O N
    AFFIRMED                                                BIRCH, J.
    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’s1 motion for full-court
    review to determine the correct apportionment under Tenn. Code Ann.
    § 50-6-208(a). After review of the entire record, we conclude that
    the trial court’s apportionment of liability was correct and that
    it is consistent with this Court’s decision in Bomely v. Mid-
    America Corp., 
    970 S.W.2d 929
     (Tenn. 1998).
    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,
    1
    CNA Insurance Company is the employer’s insurance carrier.
    2
    the employee suffered a non-work-related injury to his brain,2
    resulting in a 16 percent permanent anatomical impairment rating.
    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),3 the trial court thus
    apportioned 10 percent of the permanent and total disability award
    2
    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.
    3
    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).
    3
    to the employer to reflect this most recent injury.                   The remaining
    90 percent of the award was apportioned to the Second Injury Fund.
    This       90   percent   reflected   the       back   and   pelvic   injuries,   the
    hemangioma, and the psychological effects caused by a combination
    of these injuries.
    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),4 rather than § 50-6-
    208(a). Accordingly, the panel combined the employee’s 100 percent
    current disability status with his prior court-approved workers’
    compensation settlement of 35 percent. Because the result exceeded
    100 percent permanent disability, the panel apportioned the award
    at 35 percent liability to the Second Injury Fund (to reflect the
    amount that exceeded 100 percent) and the remaining 65 percent
    liability to the employer (to reflect a 100 percent disability
    award).
    4
    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 a workers’ compensation award or awards for
    permanent disability to the body as a whole, and the combination of
    such awards equals or exceeds one hundred percent (100%) permanent
    disability to the body as a whole, the employee shall not be
    entitled to receive from the employer or its insurance carrier any
    compensation for permanent disability to the body as a whole that
    would be in excess of one hundred percent (100%) permanent
    disability to the body as a whole, after combining awards.”
    (emphasis added).
    4
    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.
    1997); 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 compensable 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
    5
    consideration of any prior injuries.”    Id.   The trial court made
    such an explicit finding in this case.   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 compensable 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.5    The evidence
    does not preponderate against this finding.
    5
    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.
    6
    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 remaining 90 percent of the award was
    correctly apportioned to the Second Injury Fund to reflect the
    employee’s prior injuries.   Furthermore, the trial court correctly
    determined that Tenn. Code Ann. § 50-6-208(b) does not apply
    because the employee does not have any prior awards for permanent
    disability to the body as a whole which, when coupled with the most
    recent award of 10 percent, equal or exceed 100 percent.6
    For the foregoing reasons, the judgment of the trial
    court is affirmed.    Costs are taxed to the Second Injury Fund.
    ______________________________
    ADOLPHO A. BIRCH, JR., Justice
    CONCUR:
    Anderson, C.J.
    Barker, J.
    CONCURRING SEPARATELY:
    Holder, J.
    Drowota, J., not participating
    6
    The combined awards in this case (35 percent and 10 percent)
    equal 45 percent.
    7
    

Document Info

Docket Number: 03S01-9608-CH-00086

Judges: Justice Adolpho A. Birch, Jr.

Filed Date: 1/4/1999

Precedential Status: Precedential

Modified Date: 2/1/2016