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Scales v. City of Oak Ridge8/23/2001
otal disability award to Oak Ridge and 75% to the Second Injury Fund.
Oak Ridge (along with the Oak Ridge Board of Education and the Board's insurance carrier, TML Risk Management Pool) appealed the trial court's ruling to the Supreme Court. The case was referred to the Special Workers' Compensation Appeals Panel. See Tenn. Code Ann. § 50-6-225(e)(3). The Panel considered and decided several issues. First, it rejected Oak Ridge's argument that Scales only sustained one injury ; rather, the Panel affirmed the trial court's finding that she had sustained two separate injuries, each of which is separately compensable. Second, the Panel rejected Oak Ridge's argument that the permanent partial disability award (75% to each arm; 300 weeks) is subject to the 260 week cap; rather, it held that the cap does not apply to "scheduled members" such as arms, based on McIlvain v. Russell Stover Candies, Inc., 996 S.W.2d 179 (Tenn. 1999). Third, the Panel accepted part of Oak Ridge's argument that the trial court should have reduced Scales's award by the amount of social security benefits she drew from her deceased husband's account; it agreed with Oak Ridge that an offset was required, but held that the offset only applied to the permanent total disability award (for Scales's second injury , to her back). Finally, the Panel found that it could not determine the exact apportionment of Scales's award between Oak Ridge and the Second Injury Fund, since there was no evidence in the record as to how the award of 75% disability to each arm would convert into a percentage of disability to the body as a whole. Without such evidence, the Panel concluded it could not determine which subsection of Tennessee Code Annotated 50-6-208 - subsection (a) or subsection (b) - applied, and so it could not apportion liability correctly under Bomely v. Mid-America Corp., 970 S.W.2d 929 (Tenn. 1998). On this last issue, the Panel remanded the case to the trial court.
II. Our Findings of Fact and Conclusions of Law
Both Scales and Oak Ridge sought further review in this Court and we granted their motions. As discussed later in this opinion, we affirm the Panel's first two findings: Scales did suffer two separate injuries, each of which is separately compensable; further, the injury to her arms, which are scheduled members, is not subject to the 260 week cap. As to the third, we reverse the Panel's holding that a social security offset is required against the permanent total disability award; the trial court correctly determined that no offset is required for either the permanent partial or permanent total award. We also conclude - and all the parties in this case agree - that a remand is unnecessary. Under the "number of weeks"conversion method, explained below, we find that 300 weeks of benefits for Scales's injury to her arms is equivalent to 75% permanent partial disability to the body as a whole. Added to the subsequent injury with a 35% disability, relating to her back injury, Scales's award exceeds 100% permanent and total disability, thereby implicating both subsection (a) and subsection (b). Under Bomely, we find that subsection (a) controls. Therefore, the Second Injury Fund is liable for 65% of benefits for Scales's second injury (which, under the statutory cap, is 260 weeks) after Oak Ridge satisfies its obligation of 35%. Finally, we hold that Oak Ridge is liable for the full amount of benefits relating to Scales's first injury to her arms.
III. Analysis
Appellate review of factual findings in a worker's compensation case is de novo upon the record of the trial court with a presumption that the court's findings are correct. Tenn. Code. Ann. § 50-6-225(e)(2). Questions of law, however, a
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