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Scales v. City of Oak Ridge8/23/2001
nd purpose." Bryant v. Genco Stamping & Mfg. Co., 33 S.W.3d 761, 765 (Tenn. 2000); see also Mooney v. Sneed, 30 S.W.3d 304, 307 (Tenn. 2000) (stating that courts must "presume that the legislature says in a statute what it means and means in a statute what it says there") (quoting BellSouth Telecomm., Inc. v. Greer, 972 S.W.2d 663, 673 (Tenn. Ct. App. 1997)).
Our reading of the statute leads to the conclusion that, insofar as Oak Ridge is concerned, the offset provision does not apply to either of Scales's awards, for the Panel correctly held that after U.S. Pipe & Foundry Co. the offset provision could only be relevant to Scales's second injury to her back (her first injury was to a scheduled member). Accordingly, there is no need for a remand on this issue.
It remains to be considered whether the offset provision applies to the Second Injury Fund, which, as we explain below, is responsible for a percentage of Scales's award. We note that in its brief the Second Injury Fund simply states without elaboration or argument that the Panel correctly held that the offset provision applies. It is unclear whether this indicates that the Fund believes its position is incontestable or that it can adduce no persuasive argument in its favor. We think, however, that the very language emphasized above - "attributable to employer contributions" - leads to the conclusion that the offset does not apply to the Second Injury Fund, for the Fund is obviously not the same as or equivalent to an "employer." The Fund, rather, is a statutorily-created vehicle for compensating workers who have sustained a " ubsequent permanent injury after sustaining previous permanent injury," Tenn. Code Ann. ยง 50-6-208, the purpose of which is "to limit the liability exposure of the employer by holding it responsible only for the employee's first 100 percent of workers' compensation disability, thereby encouraging the employment of injured workers." Bomely, 970 S.W.2d at 932 (quoting Reagan v. American Policyholders' Ins. Co., 842 S.W.2d 249, 250 (Tenn. 1992)); see also Henson v. City of Lawrenceburg, 851 S.W.2d 809, 813 (Tenn. 1993). It is clear that whether the offset applies to the Second Injury Fund's portion of the employee's award has no bearing on whether the statutory goal of "encouraging the employment of injured workers" will be advanced, for however this question is resolved the employer must pay the same amount. While nothing prevents the legislature from determining that the offset should apply to the Second Injury Fund, perhaps in furtherance of the anti-duplication principle mentioned above, the statute as currently written provides that the offset applies only to "payments attributable to employer contributions."
We therefore reverse this part of the Panel's decision and hold that the social security offset provision does not apply to the Second Injury Fund. The exact apportionment of the compensation award between Oak Ridge and the Second Injury Fund may now be determined.
B. Apportionment
Scales sustained two permanent injuries resulting in awards which exceed 100% when combined. We must therefore determine whether the Second Injury Fund is liable for some portion of her overall compensation award, and, if so, the proper apportionment of that award between the Fund and Oak Ridge. The Second Injury Fund's liability is governed by Tennessee Code Annotated section 50-6-208 according to the procedure outlined in Bomely. See 970 S.W.2d at 934-35; see also Hill v. CNA Ins. Co., 985 S.W.2d 959, 961-62 (Tenn. 1999) (following Bomely). Based on an earlier case, Perry v. Sentry Ins. Co., 938 S.W.2d 404 (Tenn. 1996), we noted in Bomely that the Second Injury Fund is liable under sec
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