FILED

January 4, 1999

Cecil W. Crowson

Appellate Court Clerk

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

WAYNE ELDRED HILL, ) FOR PUBLICATION

) 

Plaintiff/Appellee, )

) FILED: JANUARY 4, 1999

v. )

)

CNA INSURANCE COMPANY ) KNOX COUNTY

 )

 Defendant/Appellee )

and ) HON. FREDERICK K. MCDONALD,

LARRY BRINTON, JR., DIRECTOR ) CHANCELLOR

OF THE DIVISION OF WORKERS’ )

COMPENSATION, TENNESSEE )

DEPARTMENT OF LABOR, ) NO. 03-S-01-9608-CH-00086

SECOND INJURY FUND, ) 

)

Defendant/Appellant. )

For Appellee Hill: For Appellant:

DAVID H. DUNAWAY JOHN KNOX WALKUP

LaFollette, TN Attorney General and Reporter

For Appellee CNA Ins. Co.: DIANNE STAMEY DYCUS

Senior Counsel

LINDA J. HAMILTON MOWLES Nashville, TN

Knoxville, TN

O P I N I O N

AFFIRMED BIRCH, J.
1CNA Insurance Company is the employer’s insurance carrier. 

2

In this workers’ compensation action, the trial court

determined that Wayne Eldred Hill, the employee, was permanently

and totally disabled. Pursuant to Tenn. Code Ann. § 50-6-208(a),

the court apportioned 10 percent of the award to the employer and

90 percent of the award to the Second Injury Fund. The case was

referred to the Special Workers’ Compensation Appeals Panel for

findings of fact and conclusions of law pursuant to Tenn. Code Ann.

§ 50-6-225(e). The Appeals Panel modified the award by

apportioning 65 percent to the employer and 35 percent to the

Second Injury Fund pursuant to Tenn. Code Ann. § 50-6-208(b).

We granted CNA Insurance Company’s1 motion for full-court

review to determine the correct apportionment under Tenn. Code Ann.

§ 50-6-208(a). After review of the entire record, we conclude that

the trial court’s apportionment of liability was correct and that

it is consistent with this Court’s decision in Bomely v. MidAmerica Corp., 970 S.W.2d 929 (Tenn. 1998).

The employee managed a convenience store owned by the

employer. In January 1992, he sustained back and pelvic injuries

in an automobile accident which occurred in the course and scope of

his employment. For these injuries, he accepted a settlement award

of 35 percent permanent partial disability. While recuperating,
2The non-work related injury, Hemangioma, is described as

bleeding in the brain. It was considered a non-work-related injury

because it was determined to be the result of a congenital

condition. 

3Subsection (a)(1) of Tenn. Code Ann. § 50-6-208 (Supp. 1997)

provides in pertinent part: “If an employee has previously

sustained a permanent physical disability from any cause or origin

and becomes permanently and totally disabled through a subsequent

injury, such employee shall be entitled to compensation from such

employee’s employer or the employer’s insurance company only for

the disability that would have resulted from the subsequent injury,

and such previous injury shall not be considered in estimating the

compensation to which such employee may be entitled. . . .”

(emphasis added).

3

the employee suffered a non-work-related injury to his brain,2

resulting in a 16 percent permanent anatomical impairment rating.

The employee returned to work in April 1993.

Subsequently, in October 1993, he developed a work-related

condition in his right upper arm which was diagnosed as carpal

tunnel syndrome. The employee continued to work, and in January

1995, he underwent surgery to correct the carpal tunnel syndrome.

He again returned to work, but in October 1995, he resigned because

of psychological problems.

The trial court found that the employee was permanently

and totally disabled as a result of the effects of the

psychological problems he developed from a combination of his

injuries. Considering the employee as if he had incurred no prior

injuries, the trial court determined that he would have suffered a

10 percent permanent partial vocational disability from the

physical and psychological effects of the carpal tunnel syndrome.

Pursuant to Tenn. Code Ann. § 50-6-208(a),3 the trial court thus

apportioned 10 percent of the permanent and total disability award
4Subsection (b)(1)(A) of Tenn. Code Ann. § 50-6-208 (Supp.

1997) provides: “In cases where the injured employee has received

or will receive a workers’ compensation award or awards for

permanent disability to the body as a whole, and the combination of

such awards equals or exceeds one hundred percent (100%) permanent

disability to the body as a whole, the employee shall not be

entitled to receive from the employer or its insurance carrier any

compensation for permanent disability to the body as a whole that

would be in excess of one hundred percent (100%) permanent

disability to the body as a whole, after combining awards.”

(emphasis added).

4

to the employer to reflect this most recent injury. The remaining

90 percent of the award was apportioned to the Second Injury Fund.

This 90 percent reflected the back and pelvic injuries, the

hemangioma, and the psychological effects caused by a combination

of these injuries. 

On review, the Special Workers’ Compensation Appeals

Panel agreed that the employee was permanently and totally disabled

as a result of the “emotional disability jointly caused by the

hemangioma and the carpal tunnel syndrome.” The panel held,

however, that such permanent and total disability mandated the

application of Tenn. Code Ann. § 50-6-208(b),4 rather than § 50-6-

208(a). Accordingly, the panel combined the employee’s 100 percent

current disability status with his prior court-approved workers’

compensation settlement of 35 percent. Because the result exceeded

100 percent permanent disability, the panel apportioned the award

at 35 percent liability to the Second Injury Fund (to reflect the

amount that exceeded 100 percent) and the remaining 65 percent

liability to the employer (to reflect a 100 percent disability

award). 
5

As to findings of fact by the trial court, our review is

de novo upon the record accompanied by a presumption of the

correctness of the findings, unless the preponderance of the

evidence is otherwise. Tenn. Code Ann. § 50-6-225(e)(2)(Supp.

1997); Jones v. Sterling Last Corp., 962 S.W.2d 469, 471 (Tenn.

1998). 

The issue in this case is whether the trial court

correctly apportioned the award between the employer and the Second

Injury Fund under Tenn. Code Ann. § 50-6-208(a) rather than under

Tenn. Code Ann. § 50-6-208(b). We recently addressed the

apportionment of liability for subsequent injuries in Bomely v.

Mid-America Corp., 970 S.W.2d 929 (Tenn. 1998). In Bomely, we held

that the Second Injury Fund is liable under subsection (a) if (1)

the employee has previously sustained a permanent physical

disability from any cause or origin, either compensable or

noncompensable, and (2) the employee becomes permanently and

totally disabled as the result of a subsequent compensable injury.

Id. at 934. In such a case, the employer is responsible only for

the disability that would have resulted from the subsequent injury

had the earlier injury or injuries not existed. Bomely, 970

S.W.2d at 934. Consequently, the Second Injury Fund is liable for

the remainder of the award. 

In cases where Tenn. Code Ann. § 50-6-208(a) is

applicable, “it is important for trial courts to make an explicit

finding of fact regarding the extent of vocational disability

attributable to the subsequent or last injury, without
5The record reveals that the trial court made an explicit

finding that the 10 percent permanent partial disability rating

assessed to the carpal tunnel syndrome included that portion of the

employee’s psychological problems attributable to this last injury.

6

consideration of any prior injuries.” Id. The trial court made

such an explicit finding in this case. Although the panel agreed

with this finding, the panel nevertheless apportioned liability

under Tenn. Code Ann. § 50-6-208(b). At the time this case was

reviewed, however, the panel did not have the benefit of this

Court’s decision in Bomely.

We find that the facts before us satisfy the requirements

of Tenn. Code Ann. § 50-6-208(a), and thus, we affirm the trial

court’s ruling. The employee had sustained injuries in 1992 from

“any cause or origin,” to wit: the employment-related automobile

accident, which caused permanent disability; the employer had

notice of the employee’s preexisting conditions; and the employee

subsequently became permanently and totally disabled as a result of

the later compensable injury occurring in 1993. See Bomely, 970

S.W.2d at 937; Love v. American Olean Tile Co., 970 S.W.2d 440, 443

(Tenn. 1998). The employer is therefore responsible only for the

disability that would have resulted from the last injury as if the

employee had suffered no previous permanent injuries. 

The trial court correctly rated the employee’s permanent

vocational disability resulting from the last injury (carpal tunnel

syndrome) without consideration of any prior injuries. The trial

court found that this rating should be 10 percent.5 The evidence

does not preponderate against this finding. 
6The combined awards in this case (35 percent and 10 percent)

equal 45 percent.

7

Accordingly, we hold that the trial court correctly

apportioned 10 percent of the permanent and total disability award

to the employer to reflect the disability resulting from the last

compensable injury. The remaining 90 percent of the award was

correctly apportioned to the Second Injury Fund to reflect the

employee’s prior injuries. Furthermore, the trial court correctly

determined that Tenn. Code Ann. § 50-6-208(b) does not apply

because the employee does not have any prior awards for permanent

disability to the body as a whole which, when coupled with the most

recent award of 10 percent, equal or exceed 100 percent.6

For the foregoing reasons, the judgment of the trial

court is affirmed. Costs are taxed to the Second Injury Fund. 

______________________________

ADOLPHO A. BIRCH, JR., Justice

CONCUR:

Anderson, C.J.

Barker, J.

CONCURRING SEPARATELY:

Holder, J.

Drowota, J., not participating