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Scales v. City of Oak Ridge8/23/2001
s" conversion method, rather than a reliance on the AMA Guidelines. As it notes, however, the case law is not clear on this question.
In Henson, the Court stated that the legislature's intention was to equate a prior scheduled member award to a percentage of the body as a whole under the AMA Guidelines. 851 S.W.2d at 813. In Perry, however, the Court explained - without discussing Henson - the "number of weeks" conversion method that had been used by the Panel. 938 S.W.2d at 406. The Panel in Perry held that the Second Injury Fund was liable for only 12.5% of the employee's permanent total disability award, a conclusion it reached by converting an award of 25% permanent disability to the leg, a scheduled member, to an award of 12.5% disability to the body as a whole. Explaining this method, the Court stated: "The leg is a scheduled member having a maximum value of 200 weeks of benefits. The body as a whole is valued at 400 weeks, or twice the value of a leg. Thus, an award based on a 25 percent disability to the leg equates to one based on 12.5 percent disability to the body as a whole." Id. at n.1. (internal citations omitted). This is the Second Injury Fund's recommended approach.
The Fund acknowledges that Perry is not controlling authority but argues that the method of conversion Perry describes should be adopted on policy grounds. The Fund reasons that the AMA Guidelines address impairment ratings, not vocational disability ratings; thus, the effect of using the Guidelines would be to convert a scheduled member disability to a physical, medical impairment rating, when the very purpose of conversion is to translate a scheduled member disability value into a whole body disability value. The "number of weeks" conversion method, on the other hand, accomplishes the desired task in a straightforward, uniform way. Scales and Oak Ridge agree with this argument. After considering it fully, so do we.
We may now follow Bomely to determine the calculation under section 208(a) and (b), and then to determine which subsection is more favorable to Oak Ridge. As to Scales's first injury , the trial court found she has sustained 75% permanent partial disability to each arm. Based on the value of 200 weeks of benefits for injury to a scheduled member, see Tenn. Code Ann. § 50-6-207(3)(A)(m), this equates to 150 weeks (75% of 200), which, in turn, equates to 300 weeks, since Scales injured both her arms. Under the method outlined above, we must calculate the value of this 300 week figure in terms of an award to the body as a whole. The body as a whole is valued at 400 weeks. Tenn. Code Ann. § 50-6-207(3)(F); Perry, 938 S.W.2d at 406 n.1. The result of the calculation is 75% (300 is 75% of 400). In sum, as a result of her first injury, Scales sustained 75% permanent partial disability to the body as a whole. As to her second injury (to her back), the trial court found that she sustained an additional 35% permanent partial disability to the body as a whole. Adding the two awards, she sustained 110% permanent disability to the body as a whole.
The Second Injury Fund and Oak Ridge agree with the analysis up to this point. They also agree that subsection (a) is more favorable to Oak Ridge. Under subsection (a), Oak Ridge is liable for 35% of Scales's award - the amount of vocational disability she sustained as a result of her second injury - and the Second Injury Fund is liable for the remaining 65%. Under subsection (b), Oak Ridge would be liable for 90% of Scales's award, for the Second Injury Fund would be liable only for the amount exceeding 100% permanent disability, in this case 10%. But although the parties agree with this percentage allocation they disagree on the other essential part
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