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Scales v. City of Oak Ridge8/23/2001
tion 208(a) if (1) the employee has previously sustained a permanent physical disability from any cause or origin, either compensable or non-compensable, and (2) the employee becomes permanently and totally disabled as the result of a subsequent injury. Explaining this statutory language, we stated: "In such a case, the employer pays only for the disability that results from the subsequent injury that rendered the employee permanently and totally disabled, without consideration of any prior injuries. In other words, an employer under subsection (a) is responsible only for that disability that would have resulted from the subsequent injury had the earlier injury or injuries not existed." 970 S.W.2d at 934 (internal citation omitted). Also following Perry, we indicated that an "employee will also have met the requirements for recovery under [section 208(b)] if the employee has received or will receive workers' compensation awards, including the last one, for permanent disability to the whole body which exceed 100 percent when combined." Id. at 934-35 (citations omitted). "When this occurs, the Second Injury Fund pays benefits due the worker in excess of 100 percent after all compensable awards, including the last one, are combined." Id. at 935 (citations omitted). Finally, we restated our previous holding that an injured worker may meet the criteria under both subsection (a) and subsection (b). Id. (citing Perry, 938 S.W.2d at 407) (" section (a) and (b) are not mutually exclusive, and an employee may meet the criteria for recovery under both sections."). Resolving the issue of how to apportion liability when both subsections apply, we held that "when the facts satisfy the requirements of both subsections, courts should apply the one which produces a result more favorable to the employer since the goal of the Second Injury Fund statute is to encourage the hiring of injured workers by limiting employer liability." Id.
The Panel attempted to apply Bomely but concluded that, because of an incomplete record, it was impossible to determine which subsection would be most favorable to the employer. First, it held that a calculation under subsection (a) was possible: the trial court found that Scales had become permanently and totally disabled because of her subsequent injury , which resulted in a vocational disability rating of 35% to the body as a whole; thus, Oak Ridge is liable for 35% of the total disability award and the Second Injury Fund is liable for the balance. The Panel, however, determined that it could not perform the calculation under subsection (b), because the trial court failed to convert the 75% disability finding - which related to Scales's first injury, to her arms - into a percentage of disability for the body as a whole. While the Panel believed such a conversion was possible, based on the American Medical Association (AMA) Guidelines, the trial court had simply failed to make the necessary findings. Without those findings it could not be determined whether Scales's award exceeds 100%, the prerequisite for applying subsection (b), and, accordingly, which subsection is most favorable to Oak Ridge. The Panel therefore remanded the case to the trial court on this issue.
Although the parties differ in their ultimate apportionment calculations, they agree that the Panel erred in ordering a remand; they argue that the Court has all the information it needs to convert the scheduled member disability award of 75% to a body as a whole award, thereby allowing for a calculation under subsection (b). Despite some differences in elaboration, the parties' arguments on how this conversion should proceed generally conform to the Second Injury Fund's analysis. In brief, the Fund advocates a "number of week
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