                     IN THE SUPREME COURT OF TENNESSEE
                                 AT JACKSON
                               April 3, 2001 Session

             DOROTHY WILKINS v. THE KELLOGG COMPANY

                      Appeal from the Circuit Court for Shelby County
                        No. 91639T.D. John R. McCarroll, Judge


                       No. M1999-00676-SC-R3-CV - Filed July 3, 2001


ADOLPHO A. BIRCH, JR., J., filed a dissenting opinion, in which William M. Barker, J., joined.

        The majority holds that the difference between pre- and post-injury wages for an employee
whose weekly wage fell from $1,433.82 to $860.80 is $0. This holding, in my view, contravenes
legislative intent, creates the potential for abuse of the benefit scheme, and muddles benefit
calculation. In order to more effectively promote the Worker’s Compensation Act’s intended
objectives and clarify benefit calculation, I would define “wage” in the temporary partial disability
provision to mean “average weekly wage,” not “hourly rate of pay.” Accordingly, I respectfully
dissent.

        The intended purpose of the Act is to reimburse employees for the financial consequences
of workplace injuries. See Betts v. Tom Wade Gin, 810 S.W.2d 140, 142 (Tenn. 1991) (“[T]his
Court must interpret [the Act] in a manner designed to protect workers and their families from the
economic devastation that . . . can follow on- the-job injuries.”). In common-sense terms, when a
work-related injury harms an employee financially, the Act provides relief by offsetting the reduced
earning capacity caused by the injury. The majority decision to define “wage” as “hourly rate of
pay” when calculating temporary partial disability benefits undermines this principle because hourly
rate of pay, unlike average weekly wage, is not a reliable indicator of the economic impact of a
workplace injury.

       An example illustrates the lack of correlation between the economic impact of an injury and
hourly rate of pay:

               Two employees, A and B, work 40 hours per week and are each paid
               $10 per hour, a weekly wage of $400. Both sustain injuries which
               render them temporarily, partially disabled, and both are assigned
               light duty work. A is paid a light duty rate of $5 per hour and works
               40 hours per week, while B continues to receive $10 per hour but
               receives only 20 hours per week of light duty work.
A and B both have suffered an identical weekly economic loss of $200 because of their injury.
Under the majority holding, however, B receives no benefits because B’s hourly pay remained
unchanged, whereas A receives $133.33 per week because A’s hourly pay was reduced. Even
though the two injuries have caused the same financial consequences, the results are markedly
different. Under the majority holding, the benefits an employee receives depend not upon the
economic impact of an injury but upon employer decisions regarding pay rates for light duty work.
This surely is not the result the legislature intended. Temporarily partially disabled employees who
suffer financially because they work fewer hours are no less deserving of compensation than those
who work full time at lower rates of pay. In my view, a result which differentiates so arbitrarily
between similarly-situated employees seems contrary to our duty to uphold the equal protection of
law.

        The majority holding creates the potential for abuse by employers. Again, an example may
be instructive:

                    E works 40 hours per week at $10 per hour, a weekly wage of $400.
                    A work-related injury renders E temporarily partially disabled. E’s
                    employer assigns E ten hours per week of light duty work. E receives
                    the same hourly pay, $10 per hour, but loses 30 hours of work time,
                    a weekly loss of $300. Had E been totally disabled for the same
                    period, he would have received $266.67 (66 2/3 percent of $400) per
                    week in benefits, but because he is working ten hours a week at his
                    pre-injury hourly rate he is not entitled to benefits.

Under the majority holding, E’s employer has a strong incentive to offer small amounts of light duty
work to avoid paying benefits. If E accepts the light duty assignment, he will suffer financially; if
he refuses, it may jeopardize his job. By the simple expedient of assigning partially disabled
employees fewer light duty hours but leaving hourly pay rates unchanged, employers can avoid
liability for benefits. This Court should not encourage such results.1

       The majority implies that its holding is compelled by the “obvious meaning” of the statute’s
terms. See majority op. at ___ (citing Pollard v. Knox County, 886 S.W.2d 759, 760 (Tenn. 1994)).
But the meaning of “wage” in the statute is not obvious. Indeed, the majority conclusion is not


          1
             The majority asserts that basing benefits on ave rage week ly wage would cause emp loyees like W ilkins to
receive a “windfall” because temp orary partial d isability benefits mig ht sharply exce ed tempo rary total disab ility benefits.
This assertion, however, is not convincing. The majority notes that Wilkins’s benefits would have been subject to a
maximum weekly benefit “cap” of $454.13 had she received temporary total disability benefits. B ecause W ilkins’s
weekly wage already exceed ed this cap, it argues, benefits based on average we ekly wage wo uld unfairly result in
disprop ortionate benefits. This conclusion, however, fails to consider that the temporary partial disability provision states
that it is “subject to the same maximum as stated in [the temporary total disability provision].” Tenn. Code Ann. § 50-6-
207(2)(1997). Were th e Court co ncerned th at Wilkins w ould receive a “win dfall,” it could prev ent such a resu lt, with
fewer policy ramifications, by holding that the emplo yee’s light duty wage plus the tempora ry partial disab ility benefits
paid by the e mployer c annot exce ed the max imum statutor y benefit for tem porary tota l disability.

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supported by precedent, and it tends to contradict statements made by this Court in prior cases. In
Continental Insurance Co. v. Dowdy, for example, this Court upheld the trial court’s award of
temporary partial disability benefits based upon 66 2/3 percent of the difference between the
employee’s weekly wage and the amount the employee earned after her injury. See 560 S.W.2d 619,
622 (Tenn. 1978).

        Likewise, in McCracken v. Rhyne, upon which the majority relies, the Court interpreted
“wage at the time of the injury” in the then-existing permanent partial disability benefits provision2
not to mean hourly rate of pay, but average weekly wage immediately preceding the injury (rather
than the average for the entire year). 264 S.W.2d 226, 227 (Tenn. 1953) (noting that McCracken’s
average weekly wage for a 52-week period was $33.22, but his average weekly wage immediately
preceding his injury was $42.80).3 Critical to the rationale of McCracken was that average weekly
wage at the time of the injury, as opposed to the yearly average weekly wage, better measured “the
effect of [work-related] injuries on the earning capacity of the employee.” Id. at 228. As the
majority states, “it is difficult to see why the result in Wilkins’s case should be any different.”
Majority op. at ___.

        Admittedly, the statute’s literal language refers to “wage” instead of “average weekly wage.”
But other provisions of the Act suggest that the legislature intended temporary partial disability
benefits to be based on average weekly wage. The use of phrases such as “wage of the worker at the
time of the injury” instead of “average weekly wage” is not unique to the temporary partial disability
provision. The phrase “wage received at the time of the injury” appears in the permanent total
disability provision, Tenn. Code Ann. § 50-6-207(4)(A)(i)(1977). There, however, it is clear that
the legislature intended to refer to average weekly wage, for the provision later mentions average
weekly wage in its discussion of maximum and minimum weekly benefits. Reading the two sections
together, it appears that the legislature used “average weekly wage” and “wage at the time of the
injury” interchangeably.

         Finally, today’s holding will prove confusing for the trial judges who will be asked to apply
it. Certainly, benefits calculation is straightforward where an employee is paid a lower hourly rate
for light duty work but continues to work full time. In such a case, the court simply awards two-
thirds (66 2/3 percent) of the difference between the pre-injury hourly rate and the post-injury hourly
rate, presumably multiplied by the number of hours worked. If the employee receives a lower hourly


         2
           Notably, McCracken’s holding that av erage wee kly wage do es not app ly to perman ent partia l disability benefits
for non-schedule injuries has been legislatively overr uled. See Tenn. Code Ann. § 50-6-207(3)(2) (noting that permanent
partial disability awards, including those apportioned to the body as a whole, are based on 66 2/3 percent of the
employee ’s average weekly wage). The legislature’s amendment of the statute after McCracken lends support to the
contention that average week ly wage should be dee med the intended b asis for computation of all disability benefits.

         3
          Ironically, the reason McC racken’s average weekly wage was higher immed iately before his injury was because
he was working overtime hours when he wa s injured. McCracken, 264 S.W.2d at 2 27. Thus, McCracken’s holding was
crafted to take overtime wages into ac count, whereas the majo rity holding ignores the financial consequenc es of lost
overtime p ay.

                                                             -3-
rate of pay for light duty work and works fewer hours, however, many questions arise. Are benefits
based on the employee’s full-time hours, or is the reduction in hours worked taken into account?
If the reduction in hours is considered in such a case, why is Wilkins’s loss of twenty hours per week
irrelevant? Are overtime hours simply ignored when calculating benefits? If so, what is the statutory
justification for treating overtime hours differently?4 These questions remain unanswered and will
necessitate future clarification by the Court.

        For the foregoing reasons, I would hold that “wage” should be defined in Tenn. Code Ann.
§ 50-6-207(2) to mean average weekly wage. The use of average weekly wage as the basis for
benefit calculation would better achieve the results intended by the legislature, would ensure that
employees are fairly compensated for the economic impact of work-related injuries, and would
ensure clarity and fairness in the calculation of temporary partial disability benefits. Because the
majority opinion fails to accomplish any of the above-enumerated ends, I respectfully dissent.

          I am authorized to state that Justice Barker joints in this dissenting opinion.



                                                                     ___________________________________
                                                                     ADOLPHO A. BIRCH, JR., JUSTICE




         4
          The ma jority also fails to explain why Wilkins is ineligible for benefits under its own holding. Wilkins was
paid a higher hou rly rate for her o vertime wo rk, which she lo st as a direct result of her work-related injury. The
majority’s conclusion that Wilkins is not entitled to b enefits fails to acco unt for the differe nce betwe en the overtim e rate
of pay Wilkins was earning prior to her injury and the hourly rate she earned in her partially disabled condition.

                                                              -4-
