                       IN THE SUPREME COURT OF TENNESSEE
                 SPECIAL WORKERS’ COMPENSATION APPEALS PANEL
                                  AT NASHVILLE

        LARRY HOPPER V. OSHKOSH B’GOSH AND STATE OF TENNESSEE
             DEPARTMENT OF LABOR, DIVISION OF WORKERS’
                 COMPENSATION, SECOND INJURY FUND

                     Direct Appeal from the Circuit Court of Clay County
                      No. 1410WC, Hon. John D. Maddux, Circuit Judge
                             ________________________________

                   No. M2004-01683-WC-R3-CV - Mailed: August 22, 2005
                                Filed - September 22, 2005
                           ________________________________

         This case is before the Court upon the entire record, including the order of referral to the
Special Workers’ Compensation Appeals Panel, in compliance with Tennessee Code Annotated §
50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. Mr. Hopper
injured his back February 19, 1996 while working in the warehouse of his employer. On November
17, 1997 Mr. Hopper settled this claim for 20% vocational disability. All told, Mr. Hopper initiated
four workers’ compensation claims during his employment with OshKosh resulting in 100%
vocational disability. Several years later, after he lost his job with OshKosh, Mr. Hopper filed a
motion to reconsider his earlier settlement of the February 19, 1996 claim against the Second Injury
Fund only. The trial court granted this relief, increased Mr. Hopper’s vocational disability by 30%,
and assigned liability to the Second Injury Fund. The Second Injury Fund appeals on the grounds
that the employee’s motion was untimely, that the trial court did not have subject matter jurisdiction
because the employee had suffered subsequent injuries, and that the evidence preponderated against
increasing the employee’s vocational disability. After carefully reviewing the record, we reverse the
trial court’s judgment.

Tenn. Code Ann. § 50-6-225(e)(3) Appeal as of Right; Judgment of the Circuit
Court Reversed.

J. S. (Steve) Daniel, SR. J. delivered the opinion of the court, in which Frank Drowota, C.J., and
John A. Turnbull, SP. J. joined.

Dianne Stamey Dycus, Assistant Attorney General, Nashville, TN, for the appellant, Second
Injury Fund.

William J. Butler, Farrar, Holliman, & Butler, Lafayette, TN, for the appellee, Larry Hopper.
                                                  OPINION
                                        I. Facts and Procedural History

         Mr. Larry Hopper, is a high school graduate whose primary means of employment has been
in the field of warehousing as a laborer. He has no management experience. At the time of trial, Mr.
Hopper was unemployed and was having difficulty obtaining work. Mr. Hopper worked for
OshKosh B’Gosh for almost a decade. He was injured at least four times on the job, including the
current case which was his first work-related injury.1 After these various injuries Mr. Hopper
returned to work, but subsequently lost his job due to a plant-wide shutdown unrelated to his injury.

        The injury involved in this appeal occurred February 19, 1996. Mr. Hopper was operating
a forklift when it fell through the floor of a trailer. Mr. Hopper ruptured his L5-S1 disk, an injury for
which he later required surgery. After returning to work, Mr. Hopper again injured his back in
October 1996. This injury also required surgery. Mr. Hopper separately filed two workers’
compensation complaints for the two back injuries. The trial court consolidated the two actions.
Mr. Hopper amended his second complaint to add the Second Injury Fund as a defendant, but the
Second Injury Fund was later dismissed by a voluntary non-suit. The current action only seeks to
reopen the first complaint relating to the first injury of February 19, 1996 as to vocational disability.

        Mr. Hopper settled the issues related to his first injury by an order dated November 17, 1997,
for 20% permanent partial disability. A second order dated December 9, 1997, reflects a settlement
agreement for the second injury and assigns Mr. Hopper a further 54% vocational disability. After
taking into account two subsequent injuries that he suffered while working at OshKosh, the amount
of Mr. Hopper’s vocational disability rating totaled more than 100%.

        After OshKosh laid off Mr. Hopper, he filed for a reconsideration of the settlement related
to the first injury, pursuant to Tenn. Code Ann. § 50-6-241(a)(2). Mr. Hopper claims that since
OshKosh has already paid him for 100% industrial disability to the body as a whole, the Second
Injury Fund is liable for any future increases in his award. The trial court agreed that Mr. Hopper
was entitled to a reconsideration of his first award. It found that the November 17, 1997, settlement
for 20% vocational disability was within 2 ½ times the medical disability rating limit on awards open
for reconsideration under Tenn. Code Ann. § 50-6-242(a)(1). The trial court granted Mr. Hopper
an additional award of 30% vocational disability and assigned liability for paying the award to the
Second Injury Fund.

                                             II. Standard of Review

         Review of the findings of fact made by the trial court is de novo upon the record of the trial


         1
            All told, Hopper initiated four workers’ compensation complaints against OshKosh. In February 1996 he
injured his back at the L5-S1 disc level when the forklift he drove fell through the floor of a trailer. In October 1996
he re-injured his back while lifting a 40 lb. box. In 1998-199 9 he complained of a neck injury. Concurrently, he
also complained of pain in his hands, wrists, and arms which was later diagnosed as Carpel Tunnel Syndrome.
court, 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). The reviewing court is required
to conduct an independent examination of the record to determine where the preponderance of the
evidence lies. The standard governing appellate review of the findings of fact of a trial judge
requires this panel to examine in depth the trial court’s factual findings and conclusions. GAF
Building Materials v. George, 47 S.W.3d 430, 432 (Tenn. 2001). Conclusions of law are subject to
a de novo review on appeal without any presumptions of correctness. Niziol v. Lockheed Martin
Energy Systems, Inc., 8 S.W.3d 622, 624 (Tenn. 1999). When medical testimony is presented by
deposition, this court is able to make its own independent assessment of the medical proof to
determine where the preponderance of the evidence lies. Cleek v. Wal-Mart Stores, Inc., 19 S.W.3d
770, 774 (Tenn. 2000).

                                             III. Analysis
                        Workers’ Compensation Statute of Limitations and Time
                             Limitations for Petitions for Reconsideration

        Tenn. Code Ann. § 50-6-241(a)(1) limits an employee’s recovery to 2 ½ times the medical
impairment rating where an employer returns the employee to employment at a wage equal to or
greater than the wage of the employee was receiving at the time of his or injury.2 The cap limitations
changed dramatically where an employer does not return the employee to employment at a wage
equal to or greater than the wage that the employee was receiving at the time of the injury under the
provisions of Tenn. Code Ann. § 50-6-241(b). Here, the employer’s responsibility is capped at six
(6) times the medical impairment.3 In order to promote fairness and unanimity in workers’


         2
            Tenn. Code Ann. § 50-6-241(a)(1) “For injuries arising on or after August 1, 1992, in cases where an
injured employee is eligible to receive any permanent partial disability benefits, pursuant to § 50-6-207(3)(A)(i) and
(F), and the pre-injury employer returns the employee to employment at a wage equal to or greater than the wage the
employee was receiving at the time of injury, the maximum permanent partial disability award that the employee may
receive is two and one-half (2 ½) times the medical impairment rating determined pursuant to the provisions of the
American M edical Association Guides to the Evaluation of Permanent Impairment (American M edical Association),
the Manual for Orthopedic Surgeons in Evaluating Permanent Physical Impairment (American Academy of
Orthopedic Surgeons), or in cases not covered by either of these, an impairment rating by an appropriate method
used and accepted by the medical comm unity. In making determinations, the court shall consider all pertinent
factors, including lay and exp ert testimony, employee’s age, education, skills and training, local job op portunities,
and capa city to work at types of employm ent ava ilable in claimant’s disabled co ndition.”




         3
            Tenn. Code Ann. § 50-6-241(b) “Subject to factors provided in subsection (a) of this section, in cases for
injuries o n or after Aug ust 1, 1992 , where an injured em ployee is eligible to rece ive permanent partial disab ility
benefits, pursuant to § 50-6 -207 (3)(A )(i) and (F), and the p re-injury e mplo yer do es not return the emp loyee to
employment at a wage equal to or greater than the wage the employee was receiving at the time of injury, the
maximum permane nt partial disability award that the employee may receive is six (6) times the medical impairment
rating determined pursuant to the provisions of the American Medical Association Guides to the Evaluation of
Permanent Impairment (American M edical Association), the Manual for Orthopedic Surgeons in Evaluating
Permanent Physical Impairment (American Academy of Orthopedic Surgeons), or in cases not covered by either of
these, an impairment rating by any appropriate method used and acc epted by the medical community. In making
compensation laws between these two groups of employees. Tenn. Code Ann. § 50-6-241(a)(2)
provides a mechanism for employees who are subject to the 2 ½ times medical impairment cap and
who ultimately loose their jobs with their pre-injury employer to have a reconsideration of their
industrial disability. 4 This section is an effort to put those employees who return to work but later
lose their jobs in exactly the same position or posture as they would have been had they not been
returned to work by their pre-injury employer. Tenn. Code Ann. § 50-6-241(a)(2) sets forth the
procedure and time limitation for such employees to have this reconsideration. This statute requires
an employee seeking such reconsideration to initiate such an action within “one year of the
employee’s loss of employment.” However such reconsideration petition must be within “four
hundred (400) weeks of the day the employee returned to work.” In this case it appears that Mr.
Hopper’s petition for reconsideration met the two requirements envisioned by Tenn. Code Ann. §
50-6-241(a)(2). However, the Second Injury Fund asserts that the claim of Mr. Hopper is barred by
the workers’ compensation statute of limitations provided in Tenn. Code Ann. § 50-6-203.5 Tenn.
Code Ann. § 50-6-203 bars a claim unless it is filed within one (1) year after the accident resulting
in injury or death. The Second Injury Fund was not served or put on notice of these claims in the
original law suit. Therefore, they assert the provisions of Tenn. Code Ann. § 50-6-203 bar Mr.
Hopper’s statutory reconsideration claim.

        Therefore, we are asked to consider the relationship of these two statutory provisions. We
must determine if Mr. Hopper’s reconsideration claim is barred by the provisions of Tenn. Code
Ann. § 50-6-203 or whether the provisions of §50-6- 241(a)(2) set forth a special time limitation for
asserting reconsideration claims separate and apart from the general statute of limitations.



such d eterminations, the court shall co nsider all pertinent facto rs, including lay and exp ert testimo ny, emp loyee’s
age, ed ucation, skills and training, local job op portunities, and capa city to work at types of employm ent available in
claima nt’s disab led co ndition.”

         4
            Tenn. Cod e Ann. § 50-6-241(a)(2) “ In accordance with this section, the courts may reconsider, upon the
filing of a new cause of action, the issue of industrial disability. Such reconsideration shall examine all pertinent
factors, including lay and exp ert testimony, employee’s age, education, skills and training, local job op portunities,
and capacity to work at types of employment available in claimant’s disabled condition. Such reconsideration may
be made in appropriate cases where the employee is no longer employed by the pre-injury employer and makes
application to the appropriate court within one (1) year of the employee’s loss of employment, if such loss of
employment is within four hundred (400) weeks of the day the employee returned to work. In enlarging a previous
award, the court m ust give the emp loyee credit for prior benefits paid to the em ployee in permanent partial disab ility
benefits, and any new award remains subject to the maxim um established in sub section (b).”

         5
            Tenn. Code Ann. § 50-6-203(a) “The right to compensation unde r the W orkers’ Compe nsation Law sh all
be forever barred, unless, within one (1) year after the accident resulting in injury or death occurred, the notice
required b y § 50 -6-20 2 is given the em ployer and a claim for compe nsation under the provisions of this chapter is
filed with the tribunal having jurisdiction to hear and determine the matter; provided, that if within the one-year
period voluntary payments of compensation are paid to the injured person or the injured person’s dependents, an
action to recover any unpaid portion of the compensation, payable under this chapter, may be instituted within one
(1) year from the latter of the date of the last authorized treatment or the time the employer shall cease making such
payments, except in those cases provided for by § 50-6-230. W here a workers’ compensation suit is brought by the
employer or the employer’s agent and the employer or agent files notice of non-suit of the action at any time on or
after the date of expiration of the statute of limitations, either party shall have ninety (90) days from the date of the
order of dismissal to institute an action for reco very of benefits under this chap ter.”
         Statutory construction which places one statute in conflict with another must be avoided;
therefore, we must resolve any possible conflict between statutes in favor of each other. Cronin v.
Howe, 906 S.W.2d 910, 912 (Tenn. 1995). Courts must seek the most “reasonable construction
which avoids statutory conflict and provides for harmonious operation of the laws.” LensCrafters,
Inc. v. Sundquist, 33 S.W.3d 772, 777 (Tenn. 2000). We must presume that the legislature did not
intend an absurdity. Kite v. Kite, 22 S.W.3d 803, 805 (Tenn. 1997). Statutes relating to the same
subject or sharing a common purpose must be construed together (in pari materia) in order to
advance their common purpose. Carver v. Citizen Utils. Co., 954 S.W.2d 34, 35 (Tenn. 1997).

         The court in Nay v. Resource Consultants, Inc., 2000 W.L. 4255 at 4 (Tenn. Wkrs. Comp.
Panel, January 5, 2000), concluded that reconsideration actions under the provisions of Tenn. Code
Ann. § 241(a)(2) are separate and distinct causes of action. We also conclude that the statutory
provisions for reconsideration under this subsection create a separate and distinct action whose time
limitation for initiation of reconsideration of prior claims do not offend or conflict with the general
statute of limitations imposed by Tenn. Code Ann. § 50-6-203. This statutory provision erects its
own embedded time limitation for reconsideration causes of action. Therefore, we conclude that Mr.
Hopper’s claim is timely.

                                          IV. Analysis
                        Second Injury Fund Liability for Reconsideration of
                             Vocational Disability for the First Injury

        This case presents the novel issue of whether the Second Injury Fund can be liable for a
worker’s first injury in the context of a reconsideration action. The question requires us to examine
the statutes and the legislative purposes behind the Second Injury Fund and the right to a
reconsideration of an earlier workers’ compensation award.

        The clear purpose of the Second Injury Fund is to promote the hiring and retention of
employees who have been previously injured. Tenn. Code Ann. § 50-6-208; Henson v. City of
Lawrenceburg, 851 S.W.2d 809, 818 (Tenn. 1993). This court explained the underlying principles
that underpin the Second Injury Fund in E. I. du Pont de Nemours & Company v. Friar, 404 S.W.2d
518, 521, 522 (Tenn. 1966) when we stated:

       In the development of the law of Workers’ Compensation the rule has come to be
       that an employer takes an employee the way he finds him and is liable for the
       disability resulting from an accident which aggravates a pre-existing physical
       impairment. This rule, of course, meant that employers were assuming additional
       liability when a person was hired who had a physical impairment, and naturally
       resistance to employment of such persons became evident in hiring policies. The
       Legislature, recognizing that employment of handicapped persons is in the interest
       of society, enacted the Second Injury Fund law to overcome some of the resistance
       to employment of disabled persons. The clear purpose of this legislation is to
       encourage employers to hire workers with an existing handicap which would impair
       their competitive position as a job seeker. . . .
         Stated another way, this guide line is; did the employer know of a physical condition
         of the employee, at the time of the hiring of the employee, which detracted from such
         employee’s competitiveness in the job market? If the employer did have knowledge
         of such pre-existing condition and the employee was hires in spite of such condition,
         then we think that the Second Injury Fund would be liable if a second injury rendered
         the employee totally disabled. . . . .

        There are two types of cases that the Second Injury Fund covers. Tenn. Code Ann. §50-6-
208(a) limits the liability of an employer that hires a disabled employee whose disabilities are
attributable to any prior cause. Tenn. Code Ann. § 50-6-208(b) limits the employer’s liability who
employs individuals who have received or will receive workers’ compensation awards for permanent
disability to their body from work-related injuries and those disabilities exceed 100%. The current
controversy is a section 208(b) claim. The statutory language that created the Second Injury Fund
limits the liability of the Second Injury Fund to “subsequent, compensable injuries to the body as a
whole.” Tenn. Code Ann. § 50-6-208(b)(1)(C). Therefore, the statute by its express provision limits
the liability of the Second Injury Fund in either (a) or (b) to second or subsequent injuries in which
the total disability exceeds 100%. This court in Davis v. Alexander, 372 S.W.2d 769, 770, took the
position that liability for the Second Injury Fund was limited to total incapacity resulting from a
second injury.6 Therefore, in order for a complainant such as Mr. Hopper to make a claim against
the Second Injury Fund he must suffer from a prior permanent disability either work or none work-
related as envisioned by Tenn. Code Ann. § 50-6-208(a) or (b). E. I.du Pont de Nemours &
Company v. Friar, 404 S.W.2d 518, 521. Mr. Hopper fails to meet this prerequisite for a claim
against the Second Injury Fund.

        We conclude that based on the nature of Mr. Hopper’s claim, he fails to meet the
prerequisites of asserting a claim against the Second Injury Fund when he seeks to reopen for
reconsideration his vocational disabilities, his first workers’ compensation claim. The
reconsideration provisions seeking to expand prior industrial disability awards against the Second
Injury Fund are limited to second or subsequent claims of the employee and are not available for the
first workers’ compensation claim. Having concluded that the trial court’s error requires us to
reverse its decision in holding the Second Injury Fund liable for any sum in relationship to a
reconsideration of a first injury, we find it unnecessary to address other issues raised by the Second
Injury Fund concerning the preponderance of the evidence necessary to increase the employee’s
vocational disability and whether the employee’s suffering of subsequent injuries that resulted in
awards would bar reconsideration in appropriate cases under the provisions of Tenn. Code Ann. §
50-6-241(a) or (b).

       For the reasons set forth above, we find that the provisions of Tenn. Code Ann. § 50-6-208
do not contemplate that the Second Injury Fund would ever be liable for any type of recovery in a


         6
             Davis v. Alexander, 372 S.W .2d 769, (T enn. 1963), “Tenn. Cod e Ann. § 50-1027 provides for payment
from the Second Injury Fund when and only when an employee becomes permanently and totally incapacitated
resulting from a second injury. If the employee is not permanently and totally disabled, then he has no claim against
the Second Injury Fund. In order to sustain such a claim he has to prove first that he sustained a pervious permanent
disab ility and that as a result of a second inju ry he has become perm anently and totally disab led.”
claim for reconsideration for a first injury. There must be a subsequent injury and the claim for
reconsideration must be associated with the subsequent injury before the Second Injury Fund could
be liable for a reconsideration award under the provisions of Tenn. Code Ann. § 50-6-241(a)(1) or
(b). Having found that Larry Hopper had no standing to sue the Second Injury Fund for a




reconsideration of a first injury settlement, we reverse the trial court’s finding of Second Injury Fund
liability and dismiss this action. Costs of this appeal are assessed against Mr. Hopper.


                                               _______________________________________
                                               J. S. DANIEL, SENIOR JUDGE
               IN THE SUPREME COURT OF TENNESSEE
         SPECIAL WORKERS' COMPENSATION APPEALS PANEL
                                  JUNE 10, 2005 SESSION


  LARRY HOPPER v. OSHKOSH B’GOSH AND STATE OF TENNESSEE
       DEPARTMENT OF LABOR, DIVISION OF WORKERS’
           COMPENSATION, SECOND INJURY FUND

                                 Circuit Court for Clay County
                                          No. 1410WC


                  No. M2004-01683-WC-R3-CV - Filed - September 22, 2005


                                           JUDGMENT


         This case is before the Court upon the entire record, including the order of referral to the
Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth
its findings of fact and conclusions of law, which are incorporated herein by reference.

       Whereupon, it appeals to the Court that the Memorandum Opinion of the Panel should be
accepted and approved; and

        It is, therefore, ordered that the Panel's findings of fact and conclusions of law are adopted
and affirmed, and the decision of the Panel is made the judgment of the Court.

       Costs will be paid by the Appellee, Larry Hopper, for which execution may issue if necessary.

       IT IS SO ORDERED.




                                                      PER CURIAM




                                                  8
