Patricia Love v. American Olean Tile Company and Liberty Mutual Insurance Company, and Sue Ann Head, Director of the Divison of Workers' Compensation, State of Tennessee - Concurring/Dissenting

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                  IN THE SUPREME COURT OF TENNESSEE
                              AT JACKSON
                                                             FILED
                                                                June 1, 1998
PATRICIA LOVE,                            )                  Cecil Crowson, Jr.
                                          )                  Appellate C ourt Clerk
       Plaintiff/Appellant,               )       MADISON CIRCUIT
                                          )
v.                                        )       Hon. Whit Lafon, Judge
                                          )
AMERICAN OLEAN TILE COMPANY               )       No. 02-S-01-9508-CV-00077
and LIBERTY MUTUAL INSURANCE              )
COMPANY,                                  )
                                          )
       Defendants/Appellees,              )
                                          )
AND                                       )
                                          )
SUE ANN HEAD, DIRECTOR, OF                )
THE DIVISION OF WORKERS'                  )
COMPENSATION, STATE OF                    )
TENNESSEE,                                )
                                          )
       Defendant/Appellee.                )



                   CONCURRING AND DISSENTING OPINION



       I rely on my concurring and dissenting opinion in Bomely v. Mid-American

Corp., ___ S.W.2d ___ (Tenn. 1998). While I agree with the majority's

conclusion that awards of permanent and total disability are payable to age sixty-

five, I continue to disagree, as voiced in my Bomely dissent, with the majority's

analysis of apportionment which discourages employers from hiring the

handicapped and is contrary to the stated legislative purpose behind the Second

Injury Fund legislation. An employer's liability should be limited to the first 400

weeks of benefits unless the subsequent injury would have in and of itself

caused permanent and total disability in the absence of any prior injuries or

disabilities. In such cases, the employer should bear responsibility for the entire

award to age sixty-five.
      I agree with the majority that Tenn. Code Ann. § 50-6-102(a) is applicable

to this case. I, however, continue to disagree, as voiced in my previous dissent,

with the majority's conclusion that Tenn. Code Ann. §§ 50-6-102(a) & (b) are not

mutually exclusive and may be applicable to the same case. I cannot subscribe

to an analysis which results in two subsections applying to the same injury and

yielding different results. I would apply subsection (a) exclusively whenever an

employee has sustained prior injuries from "any cause or origin" and becomes

"permanently and totally disabled through a subsequent injury." I would apply

subsection (b) only when an employee is able to continue to earn a wage but has

received compensable permanent partial disability awards that in the aggregate

exceed 100 percent. This approach resolves the ambiguities caused by the

majority's approach, is consistent with the plain language and history of Tenn.

Code Ann. § 50-6-102 and furthers the legislative intent which prompted the

Second Injury Fund legislation.




                                         JANICE M. HOLDER, JUSTICE




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