### IN THE SUPREME COURT OF TENNESSEE AT JACKSON April 3, 2001 Sessio

n

DOROTHY WILKINS v. THE KELLOGG COMPANY

Appeal from t

he Circuit Cou

rt for Shelby C

ounty No. 91639T.D. J

ohn R. McCarr

oll, Judge

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

This wor kers ’ com pen sat ion case pres ent s th e qu est ion of h ow a “te mpo rary par tia l di sab ili ty” benefitsaward, as defined in Tennessee Code Annotated section 50-6-207(2), is calculated. The trial
court held that an award is calculated based on the employee’s “average weekly wage,” which is the

measure of benefits for the other categories of disability listed in the Workers’ Compensation Law (“temporary

total disability,” “permanent total disability,” and “permanent partial disability”). The employer appe aled th is decision to the Spe cial Workers’ Comp

ensation Appeals

Panel. The case

was transferred to

the full Supreme Cou

rt before the Pan

el handed down its d

ecis ion. We

now
reverse the trial court and hold that the express terms of the statute indicate that a temporary partial disability award has a unique method of calculation, based on “the difference between the wage of the worker at the time of the injury and the wage such worke r is able to earn in such worker’s partially disabled condition.” Tenn. Code Ann. § 50-6-207(2). This method does not include the average weekly wage definition. Under the correc t calculation, the plai n tiff in this case is not entitled to any temporary partial disability benefits. The award of $3,258.20 is accordingly reversed and the cause re

manded to the tria

l court.

Appeal pursuant to Tenn. Code Ann. § 50-6-225(e); Judgment of the

Circuit Court Reversed and Remanded

F RANK F. D ROWOTA , III, J., delivered the opinion of the court, in which , E. R ILEY A NDERSON , C.J., and J ANICE M. H OLDER , J., joined. A DOLPHO A. B IRCH , J R ., filed a diss enting opinion in which W ILLI AM M. B ARKER , joined.

Larry E. Killebrew and Brett T. Parks, Memphis, Tennessee, for the app ellant, Th e Kellogg Com pan y.
B. J. Wade, Memphis, f

or the appellee,

Dorothy Wilkin

s.-2- 

### OPINION

The employee, Dorothy Wilkins (“Wilkins ”), worked for t wenty-six years at the Kellogg Company’s (“K ellogg ”) cereal manufacturing plant. She performed a variety of jobs, including packaging, assembly line work, operating heavy equipment, and filling in for other employees when the y were absent. She earned $21.52 per hour. Since she typically worked sixty hours per week, which includes twenty overtime hours (paid out at an increased hourly wage), her average

weekly wage was $1,433.82.

On March 26, 19 97, Wilkins injured her right shoulder while washing some pipes at the plant, which caused her to miss two months of work. She returned to the plant at the end of July and

was placed on a

“light duty” work

program, which imposed certain restrictions on her weight lifting and overhead movements. She had surgery a few weeks later, c ausing her

to miss more work, but she soon resumed her light duty routine. Event ually she recovered and was able to perform her normal work resp

onsibilities.

The parties agree that

Wilkins worked on light duty status for forty-three days after her injury and that during this time s he was “temporarily partially disabled” within the mea ning of the Workers’ Compensation Law. They also agree that during these

forty-thre

e days she o

nly worked forty hours per week, pursuant

to a union contract that prohibited light duty employee s from working overtime. Kellogg contin ued to pay Wilkins at her usual wage rate, but with reduced work hours her average weekly wage

was now $860.80 (40 x $21.52).

Because of her injury

and her reduce

d income, Wilkin s filed for workers’ compensation benefitsin the trial court. After finding that she sustained a compensable injury, the court awarded benefitsbased on a fifteen percent permanent partial disability to t

he whole body . This award is not

on app eal . Th e tr ial cou rt a lso awar ded Wil kin s $3 82 p er we ek i n te mpo rary p artial disability benefitsfo r the forty-thr

ee days she worked after her injury . The court arrived at this award by determining Wilkins’s average weekly wag e before theaccident ($1,433.82) and subtracting from that amount her weekly wage earned during the forty-three day pe

riod ($860.80), which yields a total of $573.02. The court then took 66 2/3% of $573.02 to arrive at $382. Finally, the court multiplied this number by 8.6 (for

ty-three day s converted to weeks), which equals $3,258.20. The court awarded this amo

unt in temporary

partial disability

benefits.

The trial court’s ca

lculation was base

d on its ap plication of the “average weekly wag e”

mea surement

of benefits required in cases of “temporary total disability ” and “permanent partia

l disabilit y,” and to a different degree, “permanent total disability.” See Tenn. Code Ann. § 50-6

- 207(1), (3), and (4). Kellogg mainta ined that this calc

ulation method does

not apply in

temporary partial disability cases and therefore appealed to the Sp

ecial Workers’ Compensation Appe als Panel. See Tenn. Code Ann. § 50-6-225(2)(e)(1), (e)(3). The case was transferr ed from the Panel to the full Supreme Court before a decision w as e ntered by the Panel. See Tenn. Code Ann. § 50-6- 225(e)(5)(A). We now reverse the trial court and hold that temporary partial disability benef its are-3-

to be calculated according to the precise method specified in section 50 -6-207(2). Under this
met hod , Wi lki ns i s no t en tit led to b enef its for tem por ary pa rti al d isa bil ity.

STANDARD OF REVIEW The issue of statutory interpretation pre sented in this case is a question of law, which we review de novo, without a p resumption of cor

rectness of the t

rial court’s judg

ment. See Nelson v. Wal-Mart Stores, Inc.
, 8 S.W.3d 6 25, 628 (Tenn. 1999 ); Owens v. Truckstops of America , 915 S.W.2d 420, 424 (Tenn. 1996).

ANALYS IS The Worker s’ Comp ensation Law classifies vocational disabilities into the following four distinctcategories, e

ach serving a s

pecific compens

ation goal: (1) t

emporary t

otal disabil

it y; (2) temporary

partial dis abi lit y; (3 ) per man ent tot al d isa bil ity; and (4) permanent partial disability. See Ivey v. Trans Global Gas & Oil , 3 S.W.3d 441, 446 (Tenn. 1999) (citing Tenn. Code Ann. § 50-6- 207(1)-(4)); Redmond v. McMinn Cou nty , 209 Tenn. 463, 467, 354 S.W.2d 435, 437 (1962) (“Each of these four kinds of disability is separate and distinct and is separately compensated for by different methods pro vid ed b y the several s ub-sections of [the

statute]; and each

of such provisions i

s independent

and unrelate

d.” ). W e are onl y con cern ed i n th is c ase w ith the seco nd c ate gory, temporary

partial disability

, which refers to

the time during wh

ich the injured em

ployee is ab

le to resume work bef

ore reaching

maximum medical impro vement.

The statute provides that temporary partial disability

benefits are to b

e awarded as fo

llows: “In all ca ses of temp orary partial disability, the compensation shall be sixty -six and two-thirds percent (66 2/3%) of the difference between the wage of the worker at the time of the injury and the wage such worker is able to earn in such worker’s partially disabled condition.” Tenn. Code Ann. § 50-6-207(2). As described above, the trial court subtracted the wage W ilk ins earned during the forty-three days in question ($860.80 per week) from the amount she had earned before her

injury ($1433.82 per week), and awarded benefits based on this difference. T h e problem with this calculation, as Kellogg points out, is that both before and after her injury Wilkins made the s ame wage: $21.52 per hour (although, as noted, her overtime hours were paid out at a higher rate ). To be sure, Wilkins took hom e less pay while on temporar y partial dis

ability statu

s, but this is only because she worked 40 hours per week rather than her usual 60 hours per week – a limitation imposed on light duty workers by the governing union contract. Thus, according to the literal terms of the statute, “the difference between the wage of the worker a t the time of the injury and the wage such worker is able to e

arn in such worker’s partially disabled condition” is $0, which means that Wilkins is not entitled to any temporary partial disability be nefits.

The trial court came to a different result by using a differ ent definition of “wage” tha n hourly
rate. The court c alcu lated Wilkins’s pre -injury wag

e based on her “a

verage week

ly wage.” This
termis defined in the statute as “the earnings of the injured employee in the

employment in which the injured employee was working at the time of the injury during the period of fifty-two (52) weeks immediately

preceding the date of the injury divided by fifty-two (52)

. . . .” Tenn. Code Ann. § 50- 6-102(2)(A). A court must us e this defi nition as t he measure o f wages when de termining a-4-

temporary

total or permanent

partial disability award. See Tenn. Code Ann. § 50-6-207(1), (3). The definition is also a part

of t he p erm anen t to tal dis abi lit y awar d cal cul ati on, tho ugh i n a d iff eren t wa y. See Tenn. Code Ann. § 50-6-207(4)(A)(i) (e xplainin g the method of calculating permanent total disability awards). But “

average wee

kly wage” is nowhere listed in

the temporary

partial disability section of the statute, which only refers to the difference betwee n the wage at the time of injury and the wage the employ

ee is able to ear

n while on tempora

ry partial d

isability sta

tus. T his case, therefore, turns on the meaning of the word “wage” for the purpose o

f calculating Wil

kins’s benefits. It is clear tha t she may recover an award if t he average weekly wage concept applies in the temporary partial disability context, and it is clear that she may not recover if wage refe rs to her hourly wage.

We must start from the premise that “[w]hile the Workers’ Compensation Act is to be liberally construed for the

employee’ s benefit, that pol icy does not a

uthorize the amend

ment, alteration or extension of

its provisions beyond its obvious meaning.” Pollard v. Knox County , 886 S.W.2d 759, 760 (Tenn. 199 4). This premise is simply a specific appli

cation of the most b

asic rule of statutory construction: courts must attempt to give effect to the legislative purpose and intent of

a statute, as determined by

the ordinary meaning of its text, rather than seek to alter or amend it. See, e.g. , Mooney v. Sneed , 30 S.W.3d 304, 306-07 (Tenn. 2000) (citations o mitted). In at

tempting to accomplish this g

oal, courts must

keep in mind that the

“legislature is

presumed to

use each word in a statute de liberately

, and that the use o

f each word con

veys some int

ent and has a spec

if i c meaning and purpose.” Bryant v. Genco Stamping & Mfg. Co. , 33 S.W.3d 761, 765 (Tenn. 2000). “Consequently, where

the legislature includes particular language in one section of the statute but omits it in another section of the same act, it is presumed that the legislature acted purposefully

in including or excluding that particular subject.” Id. ; see also Crowe v. Ferguson , 814 S.W.2d 721, 723 (Tenn . 19 91) (“The Court sh ould assume that the

Legislatur

e used each wor

d in the statute purposely and that the use of these words conveyed some intent and had a meaning and purpose.”).

With this premise in mind, and given the fact that ea ch vocational disa

bility categ

ory is distinctand serves a specific compensation goal, see Ivey
, 3 S.W.3d at 446, Wilkins’s argument that the trial court correctly calculated her benefits is

not persuasive. The trial court based the award on Wilkins’s pre-injury average weekly wage, but that concept is conspicuously absent from the
te mpor ary

partial disability provision of the statute, which refers only to “w age.” In a case very similarto the one before us, we have previously held that this conspicuous absence – the appearance of “average we

ekly wage ” inone part of the sta

tute but not another – was dispositive. In McCracken

v. Rh yne , the emplo yee sought benefits for a permanent partial disability at a time when such benefits werebased on the “difference between the wage of the workman a t the time of the injury and th e wage he is able to earn in his partially disabled condition . . . .” 196 Tenn. 72, 73, 2 6 4 S.W.2d 226, 227 (1953). The trial court found that the phrase “wage of the worker at the time of the injury” was synony

mous with aver age w eekly wage, and awarded bene fits based on that rationale. We reversed, concluding that “the legislature intended to say exactl

y what it did say” and that a court does not have the authority “to substitute words of its own, and having a differe nt meaning, in lieu of the words which it appears the legislature intended to use.” Id. 196 Tenn. at 78-1 King v. Goodyear Tire & Rub ber Co. , No. 02S01-9611- CH-00100, 1997

WL 468958 (Tenn. Aug. 18, 1997).

-5- 79, 264 S.W.2d at 229. Altho ugh McCracken dealt with permanent partial disability, not temporary partial disability, it is difficult to see why the result in Wilkins’s case should be any different.

Wilkins argues, based on an unreported decision of a Special Workers’ Compensation Appeals Panel, 1 that a failure to inco rporate the a verage weekly wage c oncept into the temporary partial disability ca

lculation would und

ermine workers’ comp ensation p olicy. She notes that the calculation of an employee’s average wee kly wage includes such com pensatio n as overtime, bonuses, and commissions. See P&L Const. Co. v. Lankford , 559 S.W.2d 793, 795 (Tenn. 1978) (statin g t hat the earning

s of an employ

ee under this def

inition “include a

nything re

ceived by h

im under the terms of his employment contract from which he realizes economic gain” )

. But see Pollard , 886 S.W.2d at 760 (holding that the scope of the “average weekly wag e” definition is not unlimited and concluding that it excludes “fr inge benefits”

). The law include

s this non-wage i

ncome in the benefi ts calc ulation in recog nition of the way

in which certain e

mployees ar

e actually compensated. Since the law recognizes the importance of non-wage income pursuant to the three other vocational disabi

lity categ ories, she arg

ues, it should also

recognize it pur

suant totemporary partial disability; there is no reason to think that the Legi sla tur e wo uld sin gle o ut t his lat ter cat egor y, to the detriment of employees who depend upon non-wage income in their w eekly compensation.

If reading section 207(2) literally, thereby reversing the trial court , requir ed us to accept Wilkins’s argument in

full, this case would indeed be difficult. Our decision would seem to call for

a rethinking of this statutory provision, though such a rethinking would be the L egislatur e’s du ty, notthis Court’s. However, we do not find it necessary to interpret the statute as Wilkins suggests. Given the facts of this case, our ho lding simply does not implicate t

he policy co

ncerns she raise

s. Wilkins’s income, after all, was not based on bonuses or commissions. She o nly receiv ed an hourly wage from Kell

ogg, and this

hourly wage remained the same before and after her injury . It is true that she typi

cally work

ed twenty hours overtime

per week and tha

t after her injur

y she was una

ble
to work these extra h

ours. Yet this d

ecrea se in hours was mandated by a union contract, which placed limits on work hours for light duty employees. D espite her inability to work overtime, she still worked a full forty-hour week and was compensated based on a

full forty-hour week. Thus, we do not agree that the po lic y und erl yi ng the Workers’ Compensation Law is thwarted by re ading section 207(2) as if it doe s not i nclude t he average weekly wag e concept – and, according to the statute’s text, it

does not. As we have stated previously , the purpose of wo

rkers’ compensa

tion is
to “provide injured workers with periodic paymen ts as a substitute for lost wages in a manner consistent with the worker’s regular wage.” Mackie v. Young Sales Corp. , ___ S.W.3d ___, ___ (Tenn. 2001); see also Perdue v. Green Branch Mining Co. , 837 S.W.2d 56, 59 (Tenn. 1992); Van Hooser v. Mueller

Co. , 741 S.W.2d 329, 330 (Tenn. 1987). Wilkins did not need a “substitute for lost wages in a manner consistent with [her] regular wage” because she was in fact paid her reg ular wage for the forty-three day s she was on temporary partial disability status.-6-

Kellogg responds to Wilkins by arguing that far from thwarting workers’ compensation policy goals, its light d

uty progr am benefits

workers who are

temporarily

and partially

disabled but still willing and able to work, and in doing so the program promotes the policy of helping workers become fully reha bilitated so they

can resume their

former jobs. I

f Wilkins’s argume

nt is accepted, Kellogg maintains, andthe company must pay the differe nce in compensation based on th e average weekly wage definition (in this case an addi tional $382 per week) “it would be a tremendous disincentive to Kellogg to offer employees light duty status during periods of tem porary par

tial disability because it would be forced to pay employees for service s not rendered.” This disincentive, Kellogg argues, is detrimental to workers’ compensation policy; indeed in certain cases, as here, the abolition of a light duty

program would leave an employee worse off financially. Kellogg notes that the trial court

found that Wilkins’s maximum weekly benefit was $454.13, the amount of bene fits she would have received had she remained at home, that is, had Kellogg not given her the opportunity

to work on light dut

y status. Wilkin

s does not disp

ute this figure. Since she earned $860.80 per week

while on light duty

status, she has received more in wages than she would have received in benefits. Under the circumstances, Kellogg argues, she should not be entitled to a $382 per week “windfall.”

We cannot say

withcertainty that Kellogg’s policy arguments represent the true legislative purpose in omitting refer

ence to averag

e weekly wages in section 207(2), for the text of the st atute does not clearly

reveal the legislative purpose. We find Kellogg’s arguments significa nt, however, because they demonst

rate a reasona

ble, fair interpr

etation of the polic

y goals und

erlying w orkers’ compensation. To the extent Wilkins must show that giving effect to the ordinary language in the
statute would actually

contravene leg

islative inte

nt , we do not t hink she ha s made this showing. Therefore, we cannot avoid the conclusion that the trial court erre

d in calculating Wilkins’s wages based on a particular method that is conspicuously absent from the applicable statutory provision.

Justice Birch argues in dissent that this result is contrary to legislative intent, cre ates the potential for abuse, and mu ddles the benefit

calculation. His f

irst argument

is based on an understanding of legislative intent that does not sufficiently account for the actual word s of the
statute. Indeed, he would hold that the legislature intended to use the words “average weekly wag e”
to govern the interpretation of the one part of the sta

tute – am ong t he fo ur ca tego rie s of dis abi lit y – where those

words are conspicuously absent. Perhaps the “averag e weekly wage” concept

should govern all benefit calculations. The problem is that, according to the statute’s express terms, it does
not.

Justic e Birch’s second argument is, in our view, more substantial. For the reasons he carefully articulates, i f “ wage” always means “hourly rate of pay ,” no matter the factual circumstances of the case, employers might seek to reduceemployees’ work hours to unac ceptably low levels. The mere possibility of such abu se is arguably

sufficient caus

e for the legisl

ature to amendthe statut e, though, of c ourse, that is not up to this Court. To his arguments, however, we respond, fir st, that Kellogg ’s employme nt policy with

respect to Wilkins – w

hich is the only

case before us – is anything but abusive. As we have ex plained, K ellogg has paid Wilkins ($860.80 per week) far more than she would have received in benefits ($454.13per week). This amount might-7-

well have been even

greater, wer

e it not for the limita

tions imposed by

Wilkins’s union contr

act. Simply stated, Wilkins does n

ot need to be reim

bursed for t he financial consequences of her workplace injury, as Justi ce Birc h suggests, bec

ause Kellogg

has already

“reimbursed” he

r well beyond t he maximum benefit pr

ovided in the tempor

ary partia l disability pr

ovision of the statu

te

. See Tenn. Code Ann. § 50-6-207(2) (inc orporatin g the maximum weekly benefit provision in section 207(1), which governs temporary total disability awards). Wilkins, therefore, clearly doe s notsuffer from the Court’s holding. T o the co ntrary, our holding provides

an incentive for

employers t

o provide their employees with beneficial light duty programs. Were the Court to adopt Justice Birch’s approach, however, wemight create the opposite incentive, thereby forcing employers to provide far less generous programs, or even no programs at all. I n the latter situation, a s we hav e explained, employees i

n Wilkins’s shoes woul

d receive far l

ess compensation f

or their injuries.

Our second response to Justice Birch’s “potential for abuse”argument, is that nothing in our holding prevents the Court from addressingsuch abuses should they arise in future cases. Section 207(2) in cludes a max imum benefit provis ion, mentioned abo

ve, as well as a min

imum weekly bene fit provision, which r

eads: “In no e

vent shall the comp

ensation be less th

an the mi nimu m weekly benefit.” Were an employ er to offer its em

ployee comp

ensation below tha

t which she could receivein weekly be

nefits, the case would be dif ferent. This Cour

t has never allow

ed employer

s to

r ework their compensatio

n plans for tempor

arily injure

d workers so as to a

void paying

benefit s

. Once again, we are today presented with a case where the employer’splan substantially exceeds the level of benefits.

As to Justice Birch’s third argument, that our holding muddles the benefit calculation, we can only respond that a holding that will require further clarification when applied to new circumstances

–where we are confron

ted with employers and e mployees who ar e not situa ted simil arly to Kellogg and Wilkins – is not “muddled.” We ca n answer the ques

tions that “remain

unanswered” when they are properly before us.

For these re asons, we hold that the me thod of calculati ng temporary

partial disability

benefits, according to the terms of section 207(2) , does not include the average weekly wag e definition. Under the correct method, the “difference between the wage of [Wilkins] at the time of the injury and the wage [she wa

s] able to earn in [he

r] partially

disabled condit

ion” is $0. The trial court’s award of temporary partial benefits is therefore r eversed.

Fin all y, w e emphasize that it is unnecessary to consider the issue Wilkins has raised: whether the term “wage” in section 207(2) takes into account an em ployee’s non-wage income if that employee is regularly compensated by non-wage inco

me. That is

a different case, whose resolution is not necessarily

for eordained by our holding that section 207(2) does not incorporate the term “average weekly wag

e.”-8- CONCLUSION For the reasons explained above, we reverse the trial court and hold that temporary partial disability benefits are calculated in the precise manner s pecified in Tennessee Code Annotated section 50-6-207(2), which does not take into c

onsideration the “

average wee

kly wages ” definition found in section 102(2)(A). Under the correct calculation, we hold that Wilkins is not entitled to any temporary

partial disability

benefits.

FRANK F. DROWOTA , III , JUSTICE