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Scales v. City of Oak Ridge8/23/2001
re reviewed de novo, without a presumption of correctness. Smith v. U.S. Pipe & Foundry Co., 14 S.W.3d 739, 742 (Tenn. 2000); Nutt v. Champion Int'l Corp., 980 S.W.2d 365, 367 (Tenn. 1998).
Initially, we note that the Panel's first two findings are clearly supported by recent decisions of this Court and may therefore be disposed of without lengthy discussion. First, it is clear that Scales suffered two separate injuries, one to her arms and the other, over a year later, to her back. In Seals v. England/Corsair Upholstery Mfg., 984 S.W.2d 912, 916 (Tenn. 1999), the Court held that a workers' compensation claimant who suffered two distinct injuries, and was ultimately determined to be permanently and totally disabled, was entitled to separate disability awards for both her injuries. The same is true for Scales. The fact that these two injuries became part of the same suit, after the trial court consolidated Scales's separately filed complaints, is irrelevant. Second, in McIlvain, the Court held that the 260 week cap set forth in Tennessee Code Annotated section 50-6-207(4)(A)(i) "applies to workers over age 60 who suffer injuries to the body as a whole, whether permanent partial or permanent total, but not to such workers who suffer scheduled member injuries." 996 S.W.2d at 185 (emphasis added). Scales's first injury , which occurred when she was over 60 years old, was to both her arms, which are scheduled members. Thus, under McIlvain, this first injury is not subject to the 260 week cap. Her second injury, to her back, is subject to that cap. See id.; Vogel v. Wells Fargo Guard Serv., 937 S.W.2d 856, 862 (Tenn. 1996).
Scales's second injury , which resulted in a combined award exceeding 100% permanent disability, raises two further issues that require some discussion: the application of the social security offset provision and the apportionment of Scales's overall award between Oak Ridge and the Second Injury Fund.
A. Social Security Offset
The statutory provision governing the availability of an offset for social security benefits is Tennessee Code Annotated section 50-6-207(4)(A)(i). Referring to permanent total disability benefits, the statute provides that " uch compensation payments shall be reduced by the amount of any old age insurance benefit payments attributable to employer contributions which the employee may receive under the Social Security Act . . . ." Oak Ridge argues that nothing in this statute makes it ineligible to receive the benefit of the offset provision; therefore, the total amount of benefits it owes to Scales must be reduced by the amount of social security benefits she receives. Although it is undisputed that Scales does not receive any such benefits in her own name, the record reveals she did not seek her own benefits because she believed her deceased husband's benefits were more generous. Since she is still enjoying the benefits of social security payments, Oak Ridge argues, the offset provision should apply.
The Panel agreed in part with Oak Ridge's argument, stating: "We do not accept the argument the offset should not be allowed against the total disability award because the social security benefits were attributable to the employee's husband's account and based on his earnings." The Panel then quoted language from section 207(4)(A)(i), which it deemed "broad" in scope, as follows: "any . . . . benefit . . . . which the employee may receive . . . ." Therefore, the Panel modified the trial court's judgment refusing to allow an offset. It did not reverse the trial court outright, however, in recognition of two recent social security offset cases, namely, McCoy v. T.T.C. Illinois, Inc., 14 S.W.2d 734, 737 (Tenn. 2000), where w
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