                    IN THE SUPREME COURT OF TENNESSEE
                                AT JACKSON
                                   November 9, 2005 Session

       DONNA J. OVERMAN v. ALTAMA DELTA CORPORATION

                       Interlocutory appeal from the Chancery
                             Court for Henderson County
                     No. 18722 Hon. James F. Butler, Chancellor



                 No. W2005-00794-SC-R9-CV - Filed March 16, 2006



WILLIAM M. BARKER, C.J., dissenting.

         Because I believe that the majority misconstrues and misapplies the statutes relevant to this
case, I respectfully dissent.

        The majority neglects the true import of Tennessee Code Annotated section 50-6-206(a)(1)
(2005), which gives the interested parties in a workers’ compensation case “the right to settle all
matters of compensation between themselves[,]” by misconstruing the meaning of Tennessee Code
Annotated section 50-6-114(a) (2005), which provides that “[n]o contract or agreement . . . or other
device, shall in any manner operate to relieve any employer . . . of any obligation created by this
chapter except herein provided.” I cannot accept the majority’s conclusion that the settlement
agreement here—once stamped with the trial court’s imprimatur, as is required by statute to give it
effect under Tennessee Code Annotated section 50-6-241—constituted a “contract . . . or other
device” prohibited by Tennessee Code Annotated section 50-6-114(a) to relieve the employer of its
obligations.

         I find it reasonable to include among the “except[ions] . . . herein provided” section 50-6-
206(a)(1)’s provision allowing “[t]he interested parties . . . the right to settle all matters of
compensation between themselves”—which would include settlement agreements that provide for
knowing and intelligent waiver of reconsideration rights under a court’s supervision. Indeed, a
workers’ compensation settlement agreement stamped with a trial court’s imprimatur is not a
“contract[,] . . . agreement[,] . . . rule, regulation or other device” prohibited by statute, but rather
a final judgment of the court that can be issued only after a specific finding that “the employee is
receiving, substantially, the benefits provided by the Workers’ Compensation Law.” Tenn. Code
Ann. § 50-6-241. In other words, section 50-6-114(a) is properly construed only to prohibit
employers from making, without the approval of a trial court, “outside deals” aimed at abrogating
benefits that the employer is required to provide under the Workers’ Compensation Act. By its
language, section 50-6-114 was clearly not intended to affect the judgments of courts of law.

        Furthermore, a plain reading of recent amendments to Tennessee Code Annotated section 50-
6-241(d)(1)(A)-(B) (2005) strongly rebuts the holding in this case. “For injuries occurring on or
after July 1, 2004, . . . an employee shall not be permitted to waive or forfeit, and the parties shall
not be permitted to compromise and settle, the employee’s rights to reconsideration pursuant to this
section.” (Emphasis added.) Because this new statutory prohibition against waivers of
reconsideration rights expressly applies only after a specified date, the statute implies that such
waivers for injuries occurring before that date are permissible. If the General Assembly had intended
the absolute prohibition that the majority declares today, it would not have inserted this qualification
into the provision.1

        The General Assembly passed these amendments to Tennessee Code Annotated section 50-6-
241(d)(1)(A)-(B) against a backdrop of cases from various Workers’ Compensation Panels that
consistently and repeatedly held exactly the opposite of the majority’s new rule today—i.e., that
waivers of reconsideration rights are valid and consistent with public policy.2 See, e.g., Nay v.
Resource Consultants, Inc., No. M1996-00016-WC-R3-CV, 2000 WL 4255, (Tenn. Workers’ Comp.
Panel, Jan. 5, 2000); Ray v. Yasuda Fire and Ins. Co., No. 01S01-9710-CH-00223, 1998 WL 707775
(Tenn. Workers’ Comp. Panel, Oct. 12, 1998); Swiger v. Nashville Union Stockyard Rest. Co., No.
M2002-02971-WC-R3-CV, 2004 WL 123314 (Tenn. Workers’ Comp. Panel, Jan. 27, 2004). To
repeat, although the General Assembly has since rejected the public policy judgments of these
Panels, it did so in a qualified way—by inserting a date only after which the prohibition of waivers
of reconsideration rights would take effect. “The legislature’s failure to express disapproval of the
judicial construction . . . provides persuasive evidence of legislative adoption of that judicial
construction.” Calaway ex rel. Calaway v. Schucker, – S.W. 3d –, 2005 WL 3338655 at *9, (Tenn.
2005) (Holder, J., dissenting). By commencing the prohibition of such waivers on a specific date,
the General Assembly failed to expressly disapprove waivers of reconsideration rights for injuries
occurring before that date. Thus, I believe we have ample indication of the legislature’s adoption
of the above-cited Panels’ holdings—that such waivers are permissible—for workplace injuries, like
Ms. Overman’s, that occurred before July 1, 2004. Even the plaintiff here conceded that the Panel’s
holding in Nay— which upheld absolute waivers of reconsideration rights (as opposed to conditional
waivers, the issue in this case)—is valid for settlements of workplace injuries occurring before the
statutory prohibition!


         1
           I note also that it is elementary that, as a general matter, legislation applies prospectively only. See Elmer
E. Smead, The Rule Against Retroactive Legislation: A Basic Principle of Jurisprudence, 20 Minn. L.Rev. 775, 775-76
(1936).

         2
             Indeed, Justice Holder, the author of the majority’s opinion in this case, participated in a W orkers’
Compensation Panel that applied the rule that the majority today rejects— namely, that a knowing and intelligent waiver
of a cause not yet vested is valid in workers’ compensation cases. Campbell v. Jim Keras Buick Co., No. W 2003-00158-
W C-R3-CV, 2004 W L 442692 at *4 (Tenn. W orkers’ Comp. Panel, March 10, 2004) (holding that the employee did
not make a knowing and intelligent waiver because the agreement was not court-approved).

                                                          -2-
        Put simply, I believe the majority errs by applying the legislature’s rejection of the public
policy judgments reflected in Panel decisions such as Nay to cases in which the legislature did not
intend that rejection to apply. By including a starting date of July 1, 2004 after which waivers of
reconsideration rights are not permissible, the legislature signaled that such waivers before that date
are permissible. Ms. Overman’s injuries were reported in 2002—before the statutory prohibition of
waivers of reconsideration rights went into effect. Thus, I believe her waiver is valid.
        Fortunately, the precedential weight of this case—and its real-world effects—will be
negligible. Because of the General Assembly’s recent prohibition of waivers such as this one for
injuries occurring on or after July 1, 2004, the majority’s holding today applies only to settlements
for workplace injuries occurring before that date.


                                                   _______________________________________
                                                             William M. Barker, Chief Justice




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