                     IN THE SUPREME COURT OF TENNESSEE
                                 AT JACKSON
                               (Heard in Nashville)


PATRICIA LOVE,                       ) FOR PUBLICATION
                                     ) Filed: June 1, 1998
                                                              FILED
      Plaintiff/Appellant,           )
                                                              June 1, 1998
                                     )
v.                                   )
                                     ) Madison Circuit      Cecil Crowson, Jr.
                                                            Appellate C ourt Clerk
AMERICAN OLEAN TILE COMPANY          )
and LIBERTY MUTUAL INSURANCE         ) Hon. Whit Lafon, Judge
COMPANY,                             )
                                     ) No. 02-S-01-9508-CV-00077
      Defendants/Appellees,          )
                                     )
AND                                  )
                                     )
SUE ANN HEAD, DIRECTOR OF THE        )
DIVISION OF WORKERS’                 )
COMPENSATION, STATE OF               )
TENNESSEE,                           )
                                     )
      Defendant/Appellee.            )



For the Appellant:                    For the Appellee, Sue Ann Head,
                                      Director of the Division of Workers’
Lisa June Cox                         Compensation:
Jackson
                                      John Knox Walkup
For the Appellees, American Olean     Attorney General and Reporter
Tile Company and American Mutual
Insurance Company:                    Sue A. Sheldon
                                      Assistant Attorney General
Lewis L. Cobb
Catherine B. Clayton                  Sandra E. Keith
Jackson                               Assistant Attorney General

                                      Dianne Stamey Dycus
For the Amicus Curiae,                Senior Counsel
Tennessee Trial Lawyers
Association:

J. Anthony Farmer
Knoxville
                              OPINION

JUDGMENT OF TRIAL COURT AND WORKERS’                           DROWOTA, J.
COMPENSATION APPEALS PANEL REVERSED
IN PART AND AFFIRMED IN PART
              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

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           permanent anatomical impairment 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, ____ S.W. 2d ___ (Tenn.

           1998) filed simultaneously with this opinion.




       1
         Tenn. Code Ann. § 50-6-207(4)(A)(i) provides that compensation for permanent total
disability “shall be paid during the period of such permanent total disability until the employee
reaches the age of sixty-five (65). . . .”

                                                       3
                         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,           S.W.2d

           (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 trial court determined that the employee’s pre-existing disability was


       2
         Tenn. Code Ann. § 50-6-102(a)(6) provides that “maximum total benefit means the sum
of all weekly benefits to which a worker may be entitled.” The maximum total benefit for
“injuries arising on or after July 1, 1992, shall be four hundred (400) weeks times the maximum
weekly benefit except in instances of permanent total disability.” Tenn. Code Ann. § 50-6-
102(a)(6)(C). Tenn. Code Ann. § 50-6-207(4)(B) provides that in cases of permanent total
disability, an employee is to be compensated as provided for in Tenn. Code Ann. § 50-6-
207(4)(A) - to age sixty-five - “provided, that the total amount of compensation payable
hereunder shall not exceed the maximum total benefit. . . .”
       3
         Subsection (a)(1) of Tenn. Code Ann. § 50-6-208 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 . . . .”


       4
        Subsection(b)(1)(A) of Tenn. Code Ann. § 50-6-208 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

                                                     4
        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,          S.W.2d

        at     . Accordingly, the employer pays for the disability that resulted from the last

        injury which rendered the employee totally and permanently disabled without

        consideration of any prior injuries, which the trial court correctly found to be 32.5

        percent. The Second Injury Fund is responsible for the remaining 67.5 percent of the

        award. Thus, the apportionment made by the trial court under subsection (a), and

        affirmed by the Panel, is correct. Subsection (b) of Tenn. Code Ann. § 50-6-208

        does not apply because the employee did not have any prior awards for permanent

        disability to the body as a whole which, when coupled with the most recent award,

        equal or exceed 100 percent. See Bomely,            S.W.2d at      .



                       For the foregoing reasons, the judgment of the trial court is reversed in

        part and affirmed in part, and the case is remanded for any further proceedings which

        may be necessary consistent with this Court’s decision in Bomely, which held in part

        that the apportionment of awards between an employer and the Second Injury Fund

        shall be based on the total number of weeks to age 65, rather than limiting the

        employer’s liability to the first 400 weeks of benefits. See Bomely, ___ S.W.2d at




hundred percent (100%) permanent disability to the body as a whole, after combining awards.”

                                                   5
____ (Holder, J., dissenting). Costs on appeal are taxed one-half to the employer

and its insurer and one-half to the Second Injury Fund, for which execution may issue

if necessary.




                                          _______________________________
                                          Frank F. Drowota, III
                                          Justice

Concur:

Anderson, C.J.;
Birch, J.

Holder, J. - Separate Concurring and Dissenting Opinion

Reid, J. not participating.




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