IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

April 3, 2001 Session

DOROTHY WILKINS v. THE KELLOGG COMPANY

Appeal from the Circuit Court for Shelby County

No. 91639T.D. John R. McCarroll, Judge

No. M1999-00676-SC-R3-CV - Filed July 3, 2001

ADOLPHO A. BIRCH, JR., J., filed a dissenting opinion, in which William M. Barker, J., joined.

The majority holds that the difference between pre- and post-injury wages for an employee

whose weekly wage fell from $1,433.82 to $860.80 is $0. This holding, in my view, contravenes

legislative intent, creates the potential for abuse of the benefit scheme, and muddles benefit

calculation. In order to more effectively promote the Worker’s Compensation Act’s intended

objectives and clarify benefit calculation, I would define “wage” in the temporary partial disability

provision to mean “average weekly wage,” not “hourly rate of pay.” Accordingly, I respectfully

dissent.

The intended purpose of the Act is to reimburse employees for the financial consequences

of workplace injuries. See Betts v. Tom Wade Gin, 810 S.W.2d 140, 142 (Tenn. 1991) (“[T]his

Court must interpret [the Act] in a manner designed to protect workers and their families from the

economic devastation that . . . can follow on- the-job injuries.”). In common-sense terms, when a

work-related injury harms an employee financially, the Act provides relief by offsetting the reduced

earning capacity caused by the injury. The majority decision to define “wage” as “hourly rate of

pay” when calculating temporary partial disability benefits undermines this principle because hourly

rate of pay, unlike average weekly wage, is not a reliable indicator of the economic impact of a

workplace injury. 

An example illustrates the lack of correlation between the economic impact of an injury and

hourly rate of pay: 

Two employees, A and B, work 40 hours per week and are each paid

$10 per hour, a weekly wage of $400. Both sustain injuries which

render them temporarily, partially disabled, and both are assigned

light duty work. A is paid a light duty rate of $5 per hour and works

40 hours per week, while B continues to receive $10 per hour but

receives only 20 hours per week of light duty work. 
1

The majority asserts that basing benefits on ave rage week ly wage would cause emp loyees like W ilkins to

receive a “windfall” because temp orary partial d isability benefits mig ht sharply exce ed tempo rary total disab ility benefits.

This assertion, however, is not convincing. The majority notes that Wilkins’s benefits would have been subject to a

maximum weekly benefit “cap” of $454.13 had she received temporary total disability benefits. B ecause W ilkins’s

weekly wage already exceed ed this cap, it argues, benefits based on average we ekly wage wo uld unfairly result in

disprop ortionate benefits. This conclusion, however, failsto consider that the temporary partial disability provision states

that it is “subject to the same maximum as stated in [the temporary total disability provision].” Tenn. Code Ann. § 50-6-

207(2)(1997). Were th e Court co ncerned th at Wilkins w ould receive a “win dfall,” it could prev ent such a resu lt, with

fewer policy ramifications, by holding that the emplo yee’s light duty wage plus the tempora ry partial disab ility benefits

paid by the employer c annot exce ed the max imum statutor y benefit for temporary tota l disability.

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A and B both have suffered an identical weekly economic loss of $200 because of their injury.

Under the majority holding, however, B receives no benefits because B’s hourly pay remained

unchanged, whereas A receives $133.33 per week because A’s hourly pay was reduced. Even

though the two injuries have caused the same financial consequences, the results are markedly

different. Under the majority holding, the benefits an employee receives depend not upon the

economic impact of an injury but upon employer decisions regarding pay rates for light duty work.

This surely is not the result the legislature intended. Temporarily partially disabled employees who

suffer financially because they work fewer hours are no less deserving of compensation than those

who work full time at lower rates of pay. In my view, a result which differentiates so arbitrarily

between similarly-situated employees seems contrary to our duty to uphold the equal protection of

law.

The majority holding creates the potential for abuse by employers. Again, an example may

be instructive:

E works 40 hours per week at $10 per hour, a weekly wage of $400.

A work-related injury renders E temporarily partially disabled. E’s

employer assigns E ten hours per week of light duty work. E receives

the same hourly pay, $10 per hour, but loses 30 hours of work time,

a weekly loss of $300. Had E been totally disabled for the same

period, he would have received $266.67 (66 2/3 percent of $400) per

week in benefits, but because he is working ten hours a week at his

pre-injury hourly rate he is not entitled to benefits.

Under the majority holding, E’s employer has a strong incentive to offer small amounts of light duty

work to avoid paying benefits. If E accepts the light duty assignment, he will suffer financially; if

he refuses, it may jeopardize his job. By the simple expedient of assigning partially disabled

employees fewer light duty hours but leaving hourly pay rates unchanged, employers can avoid

liability for benefits. This Court should not encourage such results.1

The majority implies that its holding is compelled by the “obvious meaning” of the statute’s

terms. See majority op. at ___ (citing Pollard v. Knox County, 886 S.W.2d 759, 760 (Tenn. 1994)).

But the meaning of “wage” in the statute is not obvious. Indeed, the majority conclusion is not
2

Notably, McCracken’s holding that av erage wee kly wage do es not app ly to perman ent partial disability benefits

for non-schedule injuries has been legislatively overr uled. See Tenn. Code Ann. § 50-6-207(3)(2) (noting that permanent

partial disability awards, including those apportioned to the body as a whole, are based on 66 2/3 percent of the

employee ’s average weekly wage). The legislature’s amendment of the statute after McCracken lends support to the

contention that average week ly wage should be deemed the intended b asis for computation of all disability benefits.

3

Ironically, the reason McCracken’s average weekly wage was higher immed iately before his injury was because

he was working overtime hours when he wa s injured. McCracken, 264 S.W.2d at 2 27. Thus, McCracken’s holding was

crafted to take overtime wages into ac count, whereas the majo rity holding ignores the financial consequenc es of lost

overtime p ay.

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supported by precedent, and it tends to contradict statements made by this Court in prior cases. In

Continental Insurance Co. v. Dowdy, for example, this Court upheld the trial court’s award of

temporary partial disability benefits based upon 66 2/3 percent of the difference between the

employee’sweekly wage and the amount the employee earned after her injury. See 560 S.W.2d 619,

622 (Tenn. 1978). 

Likewise, in McCracken v. Rhyne, upon which the majority relies, the Court interpreted

“wage at the time of the injury” in the then-existing permanent partial disability benefits provision2

not to mean hourly rate of pay, but average weekly wage immediately preceding the injury (rather

than the average for the entire year). 264 S.W.2d 226, 227 (Tenn. 1953) (noting that McCracken’s

average weekly wage for a 52-week period was $33.22, but his average weekly wage immediately

preceding his injury was $42.80).3 Critical to the rationale of McCracken was that average weekly

wage at the time of the injury, as opposed to the yearly average weekly wage, better measured “the

effect of [work-related] injuries on the earning capacity of the employee.” Id. at 228. As the

majority states, “it is difficult to see why the result in Wilkins’s case should be any different.”

Majority op. at ___. 

Admittedly, the statute’s literal language refers to “wage” instead of “average weekly wage.”

But other provisions of the Act suggest that the legislature intended temporary partial disability

benefits to be based on average weekly wage. The use of phrases such as “wage of the worker at the

time of the injury” instead of “average weekly wage” is not unique to the temporary partial disability

provision. The phrase “wage received at the time of the injury” appears in the permanent total

disability provision, Tenn. Code Ann. § 50-6-207(4)(A)(i)(1977). There, however, it is clear that

the legislature intended to refer to average weekly wage, for the provision later mentions average

weekly wage in its discussion of maximum and minimum weekly benefits. Reading the two sections

together, it appears that the legislature used “average weekly wage” and “wage at the time of the

injury” interchangeably. 

Finally, today’s holding will prove confusing for the trial judges who will be asked to apply

it. Certainly, benefits calculation is straightforward where an employee is paid a lower hourly rate

for light duty work but continues to work full time. In such a case, the court simply awards twothirds (66 2/3 percent) of the difference between the pre-injury hourly rate and the post-injury hourly

rate, presumably multiplied by the number of hours worked. If the employee receives a lower hourly
4

The ma jority also fails to explain why Wilkins is ineligible for benefits under its own holding. Wilkins was

paid a higher hou rly rate for her o vertime wo rk, which she lo st as a direct result of her work-related injury. The

majority’s conclusion that Wilkins is not entitled to b enefits fails to acco unt for the differe nce betwe en the overtim e rate

of pay Wilkins was earning prior to her injury and the hourly rate she earned in her partially disabled condition.

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rate of pay for light duty work and works fewer hours, however, many questions arise. Are benefits

based on the employee’s full-time hours, or is the reduction in hours worked taken into account?

If the reduction in hours is considered in such a case, why is Wilkins’s loss of twenty hours per week

irrelevant? Are overtime hours simply ignored when calculating benefits? If so, what is the statutory

justification for treating overtime hours differently?4 These questions remain unanswered and will

necessitate future clarification by the Court.

For the foregoing reasons, I would hold that “wage” should be defined in Tenn. Code Ann.

§ 50-6-207(2) to mean average weekly wage. The use of average weekly wage as the basis for

benefit calculation would better achieve the results intended by the legislature, would ensure that

employees are fairly compensated for the economic impact of work-related injuries, and would

ensure clarity and fairness in the calculation of temporary partial disability benefits. Because the

majority opinion fails to accomplish any of the above-enumerated ends, I respectfully dissent.

I am authorized to state that Justice Barker joints in this dissenting opinion.

___________________________________ 

ADOLPHO A. BIRCH, JR., JUSTICE