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