                   IN THE SUPREME COURT OF TENNESSEE
                              AT NASHVILLE
                                    June 14, 2001 Session

    TRAVIS MILTON WATT v. LUMBERMENS MUTUAL CASUALTY
                   INSURANCE CO., ET AL.

                    Appeal from the Chancery Court for Madison County
                          No. 53638    Joe C. Morris, Chancellor



                   No. W2000-00104-SC-R3-CV - Filed December 20, 2001



JANICE M. HOLDER , J., concurring and dissenting.

         I concur in the majority’s holding that Watt is entitled to receive permanent and total
disability benefits. I write separately, however, to express my disagreement with the allocation of
liability between the employer and the Second Injury Fund, consistent with my concurring and
dissenting opinion in Bomely v. Mid-America Corp., 970 S.W.2d 929 (Tenn. 1998).

        The clear purpose of the Second Injury Fund is to encourage employers to hire handicapped
workers. Bomely, 970 S.W.2d at 937 (Holder, J., concurring and dissenting) (citing E.I. du Pont de
Nemours & Co. v. Friar, 218 Tenn. 554, 560, 404 S.W.2d 518, 521 (1966)). This result is achieved
by limiting an employer’s liability for a subsequent injury causing permanent and total disability to
such compensation as would have been payable for the subsequent injury without consideration of
any previous injury. Tenn. Code Ann. § 50-6-208(a)(1). The remainder of any compensation due
for the subsequent injury is then paid out of the Second Injury Fund. Id.

        In this case, Lumbermens should be held responsible solely for the benefits it would have
paid to Watt for the loss of his leg. Lumbermens’ liability would then be limited to 200 weeks of
compensation. The outcome of the majority’s allocation of liability for benefits is to expose the
employer and its insurance company to greater liability than is contemplated under the Second Injury
Fund legislation. I reiterate my position in Bomely that the majority’s analysis will deter employers
from hiring handicapped workers. Because this result is contrary to the legislature’s intent in
creating the Second Injury Fund, I must respectfully dissent to that section of the majority opinion
allocating fifty percent of the liability for Watt’s permanent and total disability benefits to
Lumbermens.



                                                      ___________________________________
                                                      JANICE M. HOLDER, JUSTICE
