                     IN THE SUPREME COURT OF TENNESSEE
                                 AT NASHVILLE
                              February 5, 2002 Session

  ROBERT L. POWELL, JR. v. BLALOCK PLUMBING AND ELECTRIC
                   AND HVAC, INC., ET AL.

                             Appeal by Permission from the
               Supreme Court Special Workers’ Compensation Appeals Panel
                          Chancery Court for Franklin County
                       No. 16,186 Jeffrey F. Stewart, Chancellor


                    No. M2001-00204-WC-WCM-CV - Filed July 12, 2002


ADOLPHO A. BIRCH, JR., J., concurring in results only.

        I agree with the result reached in this case by the majority. I write separately, however, to
express my disagreement with the reasoning the majority employs. My problem is with the reliance
on Wilkins v. The Kellogg Co., 48 S.W.3d 148 (Tenn. 2001), as the analytical basis for holding that
“wage” should be defined to mean “hourly rate of pay.” I would hold, as I expressed in Wilkins, that
“wage” should involve a weekly, rather than hourly, basis for calculating pay. Id. at 156 (Birch, J.,
dissenting). Defining “wage” to mean “hourly rate of pay” is problematic “because hourly rate of
pay, unlike average weekly wage, is not a reliable indicator of the economic impact of a workplace
injury.”

        The employee in this case returned to work at the same hourly rate of pay, but his injury
caused him to work fewer hours and earn less money on a weekly basis. Clearly, his injury has had
an economic impact regardless of his hourly rate of pay, and it is only logical to allow greater
compensation to offset that impact. As a result, it would be unnecessary to employ the
“reasonableness” analysis used by the majority–an analysis which, notably, appears nowhere in the
elements of the statute. Compare Wilkins, 48 S.W.3d at 154 (criticizing the dissent as being at odds
with “the statute’s express terms”).

        Consequently, I concur in the result reached by the majority, but not in the analysis.
Additionally, I would encourage the General Assembly to consider the adoption of a terminology
that could be applied by this Court in a manner more congruent with the intended purposes of the
Workers’ Compensation Act.



                                                      ___________________________________
      ADOLPHO A. BIRCH, JR., JUSTICE




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