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Scales v. City of Oak Ridge8/23/2001
of the calculus, namely, how many weeks of benefits are at issue. This disputed question may be framed as follows: "35% of what amount of benefits"? The Second Injury Fund argues that the answer is clearly 260 weeks - the statutory cap applying to employees over 60 years old who sustain permanent total disability injuries, see Tenn. Code Ann. § 50-6-207(4)(A)(i) - for this figure corresponds to Scales's award for her second injury to her back. As for Scales's first injury to her arms, resulting in 300 weeks of benefits, the Fund argues that Oak Ridge is responsible for the entire amount.
Oak Ridge disagrees. Its argument is based on statutory language from subsection (a), discussed above, which states in part that an "employee shall be entitled to compensation from the employee's employer . . . . only for the disability that would have resulted from the subsequent injury , and such previous injury shall not be considered . . . ." Tenn. Code Ann. § 50-6-208(a)(1). Thus, it is responsible for 35% of the second injury and no percentage of the first. Under this reading of the statute, Oak Ridge argues, it must pay only 140 weeks of benefits, for that number equals 35% of 400, the value of permanent partial disability to the body as a whole. See Tenn. Code Ann. § 50-6-207(3)(F). The Second Injury Fund is liable for the remainder of Scales's total award of 560 weeks, which amounts to 420 weeks.
We agree with the Second Injury Fund's reasoning. It is true, as Oak Ridge argues, that the text of section 208(a)(1) states that the employee is only entitled to compensation from the employer for the second injury, not the previous injury. But this statement appears in a subsection of a statutory provision that is entirely devoted to the question of how liability should be apportioned for subsequent permanent injury. Section 208, in other words, is the Second Injury Fund statute, and nothing else. It does not purport to eclipse all the other provisions in the Workers' Compensation Act that govern injuries for which the Second Injury Fund is not implicated. The procedural posture of this case underscores why this is so. Scales filed two separate workers' compensation suits, one for each injury. In the normal course of proceedings, she would have received one award for her first injury, which occurred in early 1997, and then a separate award for her second injury, which occurred in April of 1998. The reason this outcome did not arise is simply that the trial court, for reasons of judicial efficiency, consolidated Scales's two cases. Oak Ridge never compensated Scales for her initial injury, as would normally occur, because the trial court ruled on both injuries in the same case. We see no reason to hold that simply because of the trial court's consolidation order Oak Ridge is absolved from paying benefits for Scales's first injury. Indeed, we have made this clear in a recent case. See Seals, 948 S.W.2d at 916 (rejecting a "case consolidation" argument similar to Oak Ridge's).
We therefore hold that the Second Injury Fund's apportionment argument is correct: Oak Ridge must pay 35% of 260 weeks for Scales's second injury; the Second Injury Fund must pay the balance of 65% for that injury; and Oak Ridge must pay for all of Scales's first injury, which amounts to 300 weeks. The effect of this decision is to reverse in part the decision of the Panel, which remanded to the trial court after holding that it had insufficient information with which to make a judgment concerning apportionment.
IV. Conclusion
We hold that Scales suffered two separate injuries, each of which is compensable. We also hold that the social security offset provision of Tennessee Code Annotated section 50-
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