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CELOTEX CORP. v. AUTEN12/20/1995
not directly respond to the fact that Auten's two prior injuries that resulted in industrial disability were work-related. Instead, Celotex argues that it is illogical and unjust to require it to compensate Auten for all of his disability when a part of it was related to these two prior injuries, injuries for which he has already been compensated. In effect, Celotex concludes, the commissioner's award results in a double recovery for Auten.
From a logic and fairness standpoint, Celotex's argument has some merit. To answer it, we need to explore the apportionment rule's development and the reasons for it.
In Varied Enterprises, Inc., we relied heavily on Larson, The Law of Workmen's Compensation, in formulating our apportionment rule. See Varied Enters., Inc., 353 N.W.2d at 411 (citing 2 Arthur Larson, The Law of Workmen's Compensation § 59.22, at 10-365 (1981)) (discussing the total effect of two successive injuries). So we need to start there.
Apart from statute, in a situation of two successive work-related injuries, "the employer is generally held liable for the entire disability resulting from the combination of the prior disability and the present injury ." 2 Arthur Larson, The Law of Workmen's Compensation § 59.00, at 10-492.329 (1994) [hereinafter Larson].
Larson gives this reason for not crediting the employer for the disability award on the prior disability:
The capacities of a human being cannot be arbitrarily and finally divided and written off by percentages. The fact that a man has once received compensation as for 50 percent of total disability does not mean that ever after he is in the eyes of compensation law but half a man, so that he can never again receive a compensation award going beyond the other 50 percent of total. After having received his prior payments, he may, in future years, be able to resume gainful employment. In the words of the Colorado court, he may have resumed employment as a "working unit." If so, there is no reason why a disability which would bring anyone else total permanent disability benefits should yield him only half as much. A similar principle may be applied to an individual member that has been restored in whole or in part.
Larson, § 59.42(g)(3), at 10-594-599 (citation omitted). See also Gray v. Carolina Freight Carriers, Inc., 105 N.C. App. 480, 484-85, 414 S.E.2d 102, 104-05 (1992) (employee suffered back injury for which he was awarded 10% permanent partial disability; employee suffered subsequent back injury for which he was awarded permanent total disability; court agreed with deputy commissioner's denial of credit for employer's earlier payment of 10% partial disability); American Casualty Ins. Co. v. White, 207 Tenn. 294, 299-301, 339 S.W.2d 15, 18-19 (1960) (employee suffered injury to arm which was rated at 25% permanent disability to the body as a whole; held that a prior back injury rated as 25% permanent disability to the body as a whole need not be considered because the award was not payment for a previously injured member of the body).
According to Larson,
he successive-injury problem arises from the obvious fact that the combined effect of two physical disabilities is often far greater than would be reflected by merely adding together the schedule allowances for each injury existing separately. The loss of a leg, which would ordinarily mean only partial disability to a normal person, results in total disability to the man who has already, from whatever cause, lost the other leg. [541 NW2d Page 255]
There are three approaches to the resulting dilemma: first, the "full responsibility" rule, imposing liability for the entire resulting di
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