# FILED

September 8, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

FOR PUBLICA

TION VERNON RAY DAVIS, ) Filed: September 8, 1997 ) Plaintiff/Appellee, ) No. 03S01-9603-CV-00034 ) v. ) HON. WILLIAM R. H OLT, JR., ) JUDGE JIM REAGAN and HOWARD SEXTON, ) d/b/a PRECI SION CONSTRU CTION ) SEVIER CIR CUIT CO.; and TRAVELERS INSURANCE ) CO., ) ) Defendants/Appellees, ) ) and ) ) LARRY BRINTON, JR., Director of ) Worker's Compensation, Tennessee ) Dept. of Labor, Second Injury Fund, ) ) Defendant/Ap pellant. ) and BESSIE LOU RAYFIELD, ) ) Plaintiff/Appellee, ) NO. 03S01-9602-CV-00009 ) v. ) HON. WILLIAM R. H OLT, JR., ) JUDGE EMPLOYERS INSURANCE COMPANY ) OF WAUSAU; and ED

SMITH, d/b/

a ) SEVIER CIR CUIT DAYS INN OF PIGEON FORGE, ) ) Defendants/Appellants, ) ) and ) ) LARRY BRINTON, TENNESSEE ) DEPT. OF LAB

OR, DIVISION O F ) WORKERS' COMPENSATION, ) SECOND INJURY FUND, ) ) Defendant/Appellee. )
FOR APPELLEE : FOR APPELLA NT, SECOND I NJURY FUND : R. B. Hailey John Knox Walkup Frank Q. Vettor

i Attorney General & Reporte r Knoxville Dianne Stamey Dycus Senior Counsel, Attorney General's Office 

# O P I N I O N

TRIAL COURT JUDGMENTS AFFIRMED HOLDER, J.2 OPINION

We granted this consolidated appeal to deter mine whether permanent total disability can be awarded when an anatomica l disability rati ng is less than 16.7 percent. In Seiber v. Greenbrier Industries, Inc. , 906 S.W.2d 444 (Tenn. 1995), this Court adopted a panel decision holding that the limits in Tenn. Code Ann. § 50-6-241 (1996 Supp.) prec luded an award of total disabi lity when the anatomical impairment was l ess than 16.7 percent. A later, but unpublished, workers' compensation panel decision held that the li mitations in Tenn. Code Ann. § 50-6-241(b) are not appl icable to permanent total disabi lity claims. Warren v. Twin City Fire Ins. Co. , No. 03S01-9506-CV-00061 (N ov. 29, 1995, at Knoxville). We granted review to reconcile these two cases and decide this issue. For the reasons explained below, we agree with the panel's findings in Warren and hold that Tenn. Code Ann. § 50-6- 241's limitations on permanent partial d isability d o not app ly to awards of perma nent tot al disabi lity.

BACKGROUND

Vernon Ray Davis and Bessie Lou Rayfield had received prior workers' compensation awards. Both s ustained subsequent work -related injuries and received anatomical ratings of less than 16.7 per cent. Davis’ subsequent injury caused an additional ten percent anatomical impairment. Ray field’s physician attributed fifteen percent of he r total anatomical rating to her most recent workrelated injury. Both w

ere adjudged permanently and totally disabled under Tenn. Code Ann. § 50-6-207(4) (1991 Repl.).

Both cases were appealed and argued before special workers' compensation appeals panels. The cas es were consolidated and t ransferred to this Court. The parties w ere ordered to "file supplemental briefs on the issue of3 whether the multiplier maximums provisions i n Tenn. Code Ann. § 50-6-241 & -242 apply to findings of per manent total disability."

STATUTORY

CONSTRUCTION

The appellants, the Second Injury Fund and the workers’ compensation carriers, assign er

ror to the trial courts' decisions to award permanent total disability benefits. They assert that Tenn. Code Ann. § 50-6- 241 prohibits awards of permanent total disability because both Davis' and Rayfield’s most recent medical impairment ratings were less than 16.7 percent. We disagree.

Our Workers' Compensation Act classifies compensable occupational disabilities into four distinct classifications. These classification s are: (1) temporary total disabil ity; (2) temporary partial disability ; (3) permanent partial disability; and (4) permanent total disability. Tenn. Code Ann. § 50-6-207(1)- 207(4) (1996 Supp.). This Cou rt has previously recognized that each s eparate disability classi

fication is independent and serv es a specific compensation goal

. Roberson v. Loretto Cask et Co. , 722 S.W.2d 380, 383 (Tenn. 1986); Redmond v. McMinn County , 354 S.W.2d 435, 43 7 (Tenn. 1962). The issue in controversy involves the interr

elation of both permanent total and permanent partial disability and a statute specifically limiting permanent partial disability awards.

Awards for permanent partial disability are governed by Tenn. Code Ann. § 50-6-207(3)(A) -207(F) (1996 Supp.). An employee sustaining either a disability to a schedul ed member or a disability adjudged both permanent and partial to the body as a w hole may be eligible for permanent partial disability benefits. Permanent partial benefits are paid either as scheduled or for a period of up to 400 weeks. Id .; Tenn. Code Ann. § 50-6-241 & 242 (1996 Sup p.).4 The statutory definition of total disability focuses on an empl oyee's ability to return to gainful employ ment. Employees who are t otally incapacitated from gainful employment by work-related disabilities not otherwise specifically provided for under the Act ar e statutorily class ified as "totally disable d." Disabled workers falling within the purview of the "total disability" definition shall be paid permanent total disability benefits pursuant to Tenn. Code Ann. § 50- 6-207(4)(A) (1996 Supp.).

In 1992, the legislature limited permanent partial disability awards. These limits as codified provi de in pertinent part: For injuries arisi ng on or after August 1, 1992, in cases where an injured employee is eli gible to receive any permanent partial disability benefits, pur

suant to § 50-6-207(3)(A)( I) and (F), and the pre-injury employe r returns the emp loyee to employm ent at a wage equal to or greater than the employee was recei ving at the time of the injury, the maximum pe rmanent partial disabilit y award the employee may receive is two and one half (2 1⁄2) times the medical impairment rating . . . and [if] the pre-injury empl oyer does not return the employee to employ ment at a wage equal to or greater than the employee was rec eiving at the time of the i njury, the maximum permanent partial disability award that the employee may receive is six (6) times t he medical imp airment rating. Tenn. Code Ann. § 50-6-241(a)(1) & (b) (1996 Supp.). Accor dingly, the statute places limitations on that s ubset of disabilities that ar e: (1) not scheduled; and (2) adjudged to be permanent partial.

A recent panel decision, however, held that the limitations contained in § 50-6-241 were also appl icable to awards of permanent t otal disability. In Seiber v Greenbrier Industries, Inc. , 906 S.W.2d 444 (Te nn. 1995), a panel held that § 50-6-241 precluded a tr ial court from awarding total disability benefit

s when the anatomical disabil ity rating was less than 16.7 percent. The panel reasoned that under § 50-6-241, the legislature had indicate d an intent to limit "permanent disability aw ards" to six times the i mpairment rating. Id . at 447. The panel then adopted a mathematical approac h to assessing permanent total disability claims. Id

.5 We disagree with the analysis in Seiber . First, the legisl ature has explicitly indi cated an intent to limit permanent partia l disability aw ards and not "permanent disability awards" in general. Next, total disability as statutorily defined is not based on a purely objective assessment or an anatomical mathematical computation. See generally Corcoran v. Foster Auto GMC, Inc. , 746 S.W.2d 452, 458 (Tenn. 1988) (holding vocational disability i s based on both lay and expert testimony and is not restricted to precise disability estimates made by experts). The definition instead focuses on th e injured employee's ability to earn wages.

Lastly, Seiber's holding was premised on effectuating legislativ e intent from the entire statutory sc heme. The panel noted that "[t]he purpose of the Workers' Compensation Reform Act [was] t o provide benefits to injur ed employees while limi

ting employer liabil ity so as to keep wor kers' compensation affordable . . . ." Seiber , 906 S.W.2d at 447. The panel then found that the purpose of Tenn. Code Ann. § 50-6-241 was to "en courage employers to retain injured workers at wages equal to or g reater than received pr ior to the injury by providing for lesser

disability awar

ds if the employee is retain ed." Id . at 447-48.

Legislative intent, however, shall be der ived from a statute's face w hen the statutory languag e is unambiguous. Hamblen County Edu c. Ass'n v. Hamblen County Bd. of Educ. , 892 S.W.2d 428, 435 (Tenn. Ct. App. 1994); see Carson Cre ek Vac. Re sorts, In c. v. Dept. of Rev. , 865 S.W.2d 1, 2 (Tenn. 1993) (stating where lang uage within four corner s of statute is plain, clear, and ambiguous, intent shall be derived from statute's face ). If a statute's language is expressed in a manner devoid of ambiguity, courts are not at liberty to depart from the statute's words. Id . Accordingly, co urts are restricted to the "natural and ordinary" meaning of a sta tute unless an ambiguity necessitates resorting1 Tennessee Code Annotated § 50-6-242 perm its a trial judge to award permanent partial disability benefits, not to exceed four hundred (400) weeks, in appropr iate cases where permanent medical impairment is found and the employee is eligible to recei ve the maximum disability award under § 50-6-241(a)(2) or (b). Awards under Tenn. Code Ann. § 50-6-242 are predicated upon findi ng three of the following four crit

eria applicable: 1. The employee lacks a hig h school diploma or general equivalency dipl oma or the employee cannot read or write on a grade eight (8) level; 2. The employee is age fifty-five (55) or older; 3. The employee has no reasonably transferrable job skill s from prior vocational back

ground and training; and 4. The employee has no reasonable employment opportunities available locally

considering the employ ee's permanent medical condition. We note that criteria four speaks in terms of "r easonable employment opportunities" whereas to tal disability is defined as the inability to work "at an occupation which brings such employee an income." Tenn. C ode Ann. § 50-6- 207(4)(B).
6 elsewhere to ascertain

legislative intent. Austin v. Memphis Publ. Co ., 655 S.W.2d 146, 149 (T enn. 1983).

We find Tenn. Code Ann. § 50-6-241's language unambig uous. The
statute requires a threshol d findin g that the employee is eligible to receive permanent partial disability benefits. Moreover, the legislative language in § 50-6-241 narrows its

application to those specific subsections or claims of permanent partial disability falling withi n the purview of “[Tenn. C ode Ann.] § 50-6-207 3(A)(I) and ( F).” This narrowi ng language does not lend a legitimate inference that the legislature intended the limitations in § 5 0-6-241 to encompass all form s of perm anent di sability.

We ar e unpers uaded by Seiber's implication that Tenn. Code Ann. § 50-6-242 (1996 Supp.) 1 provides the remedy for workers who would otherwise be considered totally di sabled had their anatomical r ating been 16.7 percent or7 greater. Section 50-6-242 , by explicit statutory language, is applicable only to that subset of permanent partial disability claims in which the employee is eligible to receive the maximum di sability award unde r Tenn. Code Ann. § 50-6-241(a)(2) or (b

). Accordingly, if the claim does not fall within the purview of § 50-6-241(a)(2) or (b) , courts simply cannot p roceed to § 50-6-242.

We find the statutory provisions of the Workers' Compens ation Act set forth the following procedur es for assessing wor

k-related permanent disabil ities. The initial inquiry is: (1) Whether the disability is to a schedul ed member (i.e., enumerated)? An affirmative answer to q uestion one mandates that the employ ee's award be as enumerated. If, however, the disability is non- enumerated, the pertinent question becomes: (2) Whether the employee is totally incapa citated from working at an occupati on that generates an income? If question two is answ ered affirmatively, the empl oyee is eligible for total disability benefits. If, how ever, the employee is ab le to work at an occupati on that generates an income, the trial court proceeds to § 50-6-241. If certain conditions are satisfied under § 50-6-241, the trial cour t may then proceed to § 50-6-242. The inquiries then become: whether the job opportun ities available are reasonable; whether the employee has reasonable job skills that are transferrable; whether the employee is fifty-five or older; and whether the employee meets specific statutor y education criteria.

Both the procedures establish ed by the Workers' Compensation Act and the plain and ordin ary langua ge of Ten n. Code An n. § 50-6- 241 conve y a specific legislativ

e intent to limit § 50-6-241's application to awards of permanent partial disability . We, therefore, hold that § 50-6-241 is inappl icable to permanent total disability and does not preclude a trial judge from awarding8 permanent total disability merely because an anatomical impairme nt rating is less than 16.7 percent.

Holding that § 50-6-241's limitations are inappli cable to permanent total disability does not contravene the policy of employee retention as enunciated in Seiber . To the contrary, employ ers will be encouraged to find positions that accommodate work-related di sabilities to avoid ad judications of total disabil ity and payment of lifetime benefits. If, however, injured workers are "totally disabled" as statutorily defined, applying the limitations of § 50-6-24 1 to their claims does not advance the pol icy of employee retention.Totally disabled workers, by definiti on, are incapable of earning w ages or being retained. Accordingly, apply

ing § 241 to the permanent total d isability subsecti on on the basis of encouraging employee retention is simply illogical.

The parties have briefed additional issues. W e have reviewed those issues and find them devoid of merit. For the reasons discus sed in this opinion, we affirm the trial courts ' judgments. Costs of this appeal are taxed to the appellants, Second Injury Fund and the workers' c ompensation carriers, for which execu tion may is sue if ne cessary.

JANICE M. HOLDER, JUSTICE

CONCURRING: Drowota, Reid, Birch, JJ. Anderson, C.J., not partici pating