Love v. American Olean Tile Co.

970 S.W.2d 440, 1998 Tenn. LEXIS 296
CourtTennessee Supreme Court
DecidedJune 1, 1998
StatusPublished
Cited by6 cases

This text of 970 S.W.2d 440 (Love v. American Olean Tile Co.) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Love v. American Olean Tile Co., 970 S.W.2d 440, 1998 Tenn. LEXIS 296 (Tenn. 1998).

Opinions

OPINION

DROWOTA, Justice.

In this workers’ compensation action, the employee, Patricia Love, plaintiff-appellant, has appealed from a judgment of the Circuit Court of Madison County awarding her permanent total disability benefits to age 65 or until the payment of such benefits reached the maximum total benefit. The trial court apportioned the award 67.5 percent to the Second Injury Fund and 32.5 percent to the employer, American Olean Tile Company, and its insurer, Liberty Mutual Insurance Company, defendants-appellees. The Special Workers’ Compensation Appeals Panel, upon reference for findings of fact and conclusions of law pursuant to Tenn.Code Ann. § 50-6-225(e)(5), affirmed the trial court. Thereafter, the employee filed a motion for full Court review of the Panel’s decision. We granted the motion for review to determine (1) whether it was error not to have awarded benefits payable to age 65 notwithstanding the maximum total benefit, and (2) whether the apportionment between the employer and the Second Injury Fund was correct. After examining the record before us and considering, the relevant authorities, we reverse the decision of the lower courts to subject the employee’s award to the maximum total benefit. However, we affirm the apportionment of the award between the employer and the Second Injury Fund under Tenn.Code Ann. § 50-6-208(a).

The employee, Patricia Love, was 51 years old at the time of trial. She has an eleventh grade education. Her prior work experience consists of working as a housekeeper, nurse’s aide, janitor, and performing production work and manual labor. She has worked for the defendant employer, American Olean Tile Company, for approximately seven years in various capacities, including janitorial and service work.

In February and March of 1993, the employee gradually developed work-related carpal tunnel syndrome in both of her arms. She also suffered a work-related low back strain. The employee had nonwork-related pre-existing kidney damage, back problems, and uncontrollable high blood pressure. Her physicians assigned permanent anatomical [442]*442impairment ratings of 18 to 23 percent to the body as a whole. The employee is unable to work because her back does not allow her to sit for long periods of time, lift, bend, stretch, or climb. Her hands and wrists are weak, swollen and painful. The parties do not dispute that she is permanently and totally disabled.

The trial judge found the employee to be permanently and totally disabled. Benefits were awarded to age 65 or until the payment of benefits reached the maximum total benefit, which in this case was $127,296. The trial judge further found that the employee’s pre-existing disability was 67.5 percent, and that the disability from the February and March 1993 injuries (carpel tunnel in both arms and a low-back strain) was 32.5 percent. Thus, benefits were apportioned 67.5 percent to the Second Injury Fund and 32.5 percent to the employer under Tenn.Code Ann. § 50-6-208(a).

The Workers’ Compensation Appeals Panel held that awards of permanent total disability made under Tenn.Code Ann. § 50-6-207(4)(A)(i) are subject to payment of the maximum total benefit.1 Also, the Panel affirmed the trial court’s apportionment of benefits under Tenn.Code Ann. § 50-6-208(a). Thereafter, the employee filed a motion for full Court review of the Panel’s decision pursuant to Tenn.Code Ann. § 50-6-225(e)(5)(B). This Court granted the motion and- entered an order transferring the case from Jackson to Nashville to be heard with the companion case of Bomely v. Mid-America Corp., d/b/a Burger King, 970 S.W.2d 929 (Tenn.1998) filed simultaneously with this opinion.

The primary question presented is what effect, if any, does the maximum total benefit provision of Tenn.Code Ann. § 50-6-102(a)(6)2 have on awards of permanent total disability made under Tenn.Code Ann. § 50-6-207(4)(A)(i), which makes benefits payable to age 65. We have recently decided this issue by concluding that awards of permanent total disability are payable to age 65 under Tenn.Code Ann. § 50-6-207(4)(A)(i), without regard to the monetary cap imposed by the 400 week maximum total benefit provision of Tenn.Code Ann. § 50-6-102(a)(6). See Bomely v. Mid-America Corp., d/b/a Burger King, 970 S.W.2d 929 (Tenn.1998) (Holder, J., dissenting on other grounds). Therefore, the decision of the lower courts in the present case to subject the employee’s permanent total award to the 400 week maximum total benefit provision of Tenn.Code Ann. § 50-6-102(a)(6) is reversed. The award of benefits shall be paid until the employee reaches the age of 65 as required by Tenn.Code Ann. § 50-6-207(4)(A)(i).

The second issue is whether the award should be apportioned between the employer and the Second Injury Fund under Tenn. Code Ann. §§ 50-6-208(a)3 or 208(b).4 The [443]*443trial court determined that the employee’s pre-existing disability was 67.5 percent, and that the disability from the February and March 1993 injuries was 32.5 percent. The trial judge apportioned benefits on this basis — 67.5 percent to the Second Injury Fund and 32.5 percent to the employer. Although the trial court’s order indicates that benefits were apportioned pursuant to Tenn.Code Ann. § 50-6-208(a) and (b), it is apparent that subsection (a) was applied.

The facts of this case satisfy the requirements of Tenn.Code Ann. § 50-6-208(a). The employee had sustained prior injuries from “any cause or origin” which caused permanent disability, the employer had notice of her preexisting conditions, and the employee subsequently became permanently and totally disabled as a result of the compensable injuries occurring in 1993, See Bomely, 970 S.W.2d at 937.

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970 S.W.2d 440, 1998 Tenn. LEXIS 296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/love-v-american-olean-tile-co-tenn-1998.