# FILED
February 22, 2000 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE SUPREME COUR T OF TENNESSEE AT KNOXVILLE

FOR PUBLICA

TION EARL McCOY, ) ) Plaintiff/Appellant, ) ) HAMILTON CHANCERY ) ) Vs. ) HON. W. FRANK BROWN, III, ) CHANCELLOR ) ) T.T.C.. ILLINOIS INCORPORATED ) NO. E1999-01378-SC-WCM-CV ) Defendant/Appellee. )

For the Plaintiff/Appellant : For the Defendant/ Appellee : G. Brent Burks James T. Williams McMAHAN & ASSOCIATES W. Anthony Hullender Chattanooga, Tennessee MILLER & MARTIN LLP Chattanooga, Tennessee



## O P I N I O N

JUDGMENT OF TRIAL COURT DROWOTA, J. AFFIRMED.-2- In this worker ’s compe nsation action, t he emplo yee, Earl Mc Coy (“McC oy”), appeals from a judgment of the Chancery C ourt of Hamilton County which awarded him forty-five percent permane nt partial disability benefits to the body

as a whole but held that the employer, T.T.C. Incor porated of Illinois (“TTC”) w as entitled to an offset against the worker’s compensati on award in an amount equal to one-half of McCoy’s monthly Social Secur ity old age insuranc e benefit payments. McCoy raises the following two issues in this appeal: (1) whethe r the trial court err ed in finding that the employer

was entitled to the Soci al Se curi ty offset since the award w as for permanent partial disability benefits rather than p ermanen t total disability benefits; and (2) assuming an offset is appr opriate, whether

the trial court erred i n awarding
an offset of fifty percent of the total amount of Social Security old a ge insuranc e benefits received by McCoy rather than an offset equal to only TTC’s contribution to McCoy’s social security fund. After carefully examining the record and the relevant authorities, we conclude that an offset is appropriate under this Court’s decisions

in Vogel v. Wel ls Fargo Gu ard Serv. , 937 S.W.2d 856, 862 (Tenn. 1996) and McIlvain
v. Russell Stover Candies, Inc. , 996 S.W.2d 179, 184-85 (Tenn. 1999). Further more, both the l anguage of the statute and the leg islative history support the trial court’ s computation and award of a fifty percent offset of the total amount of Social Security old age insura nce bene fits rece ived by McCoy. Accordin gly, we affirm the judgment of the trial court.

BACKGROUND The facts pertinent to the legal issues in this appealare notdisputed. McCoy
was hired by TTC as a tractor operator and long distance truck driver in June of 1992. On April 23, 1995, McCoy was i nvolved in an on-the-j ob accident when his trac tor-3-

and trailer overturned in Arizona. McCoy was sixty-s

even years old

at the time

the accidentoccurred and was seventy-one years of age at the time of trial. As a result of the accident, McCoy suffered a cervic al st rain, an aggravati on of pre-existing cervical spondylosis, an a ggravation of pre-e xisting tinn itus, and a loss of balance. As a result of these injuries, the trial court found t hat McCoy h ad susta ined a fo rtyfive percent permanent partial dis ability t o the body as a whole, w hich equates to benefits for 180 weeks. Citing Tenn. Code Ann. § 50-6-207(4)(A)(i), and this Court’s decision in Vogel , the trial court also fo und that TTC is entitled to an offset against the workers’ compe nsation award in an amount eq ual to one-half of any Social Security old age insurance benefits paid to McCoy. The tri al court determined the offset to be $86.92 per week for 1995, $91.4 9 per week for 1996, and $101.42 per week for 1997.
McCoy p er fected an appeal, and following argument before the Special Workers’ Compensation Appeals Panel, an order was entered transferring the case to the regular docket of this Court for revie w and disposition. For the fol lowing reasons, we affirm the decisi on of the trial court.

STANDARD OF REVIEW Appellate review of factual findings in a w ork er’s compensation case is de
novo upon the record of the trial court with a presumption that the findings of the trial court are correct. See Tenn. Code Ann. § 50-6-225(e)(2) (1999). Where, as in this case, a question of law is presented, appell ate rev iew is de novo w ithout a presumption of correctness. Parks v. Tennessee M un. Lea gue Risk Management Pool , 974 S.W.2d 677, 678 (Tenn. 1998); Nutt v. Champion Int’l C orp. , 980 S.W.2d-4-

365, 367 (Tenn. 1998); Presley v. Bennett , 860 S.W.2d 857, 85 8 (Tenn. 1993).

SOCIAL SECUR ITY OFFSET A. Application In this Court, McCoy first contends that the trial court erred in applying the offset for Social Secu rity old age insurance benefits. McCoy contends that pur suant to the plain language of the statute, the offset applies only to awards of permanent total disability benefits, not permanent partial disability benefits. M cCoy also asserts that the trial court’s reliance upon this Court’s decis i on in Vogel was misplaced because Vogel did not di scuss the Social Se curity o ffs et. In contrast, rely ing upon both this Court’s decision in Vo gel and our more recent decision in McIlvain , TTC argues that the trial cou rt appropriatel y awarded an off set for Social S ecurity old age insurance benefits e ven tho ugh McCoy was aw arded permanent partial disability benefits rather than permanent total benefits.

We begin our analysis with the relevant s tatute, Tenn. Code Ann. § 50-6- 207(4)(A)(i) (1999), which provides, in pertinent part, as follows: [C]ompensation shall be paid during the period of the permanent total disability until the emp loye e reaches sixty-fiv e (65) years of age; provided, that with respect to di sabilities resulting from inj uries which occur after 60 years of age, reg ardless of the age of the emplo yee, permanent total disability benefit s ar e payable for a peri od of two hu ndred sixty (260) weeks. Such compensation payments sh all b e reduced by the amount of any old age insurance benef it payments attributable to employer contributions which the empl oyee may receive under the Social Security

Act, U.S.C., title 42, c

hapter 7, subchapter II, as amended. This statute contains two dir ectives which rel ate to w orkers over sixty who sustain injuriesto the body as a whole – the 260 week cap and the Social Security offset. We have not previously consider ed the appl ication o f the Social Security offset.-5-

However, the proper application and interpretation of this statute with respect to the 260 week cap was considered by this Court in Vogel . In that case, a seventy -three year old employee sustained a work-related injury which resulted in permanent total disabili ty. In Vogel , the employee contended that the “ disability-based” c

lassification which imposed a 260 week cap on benefits for workers who are perman ently and totally disabled past the age of sixty was irrational.

This Court agreed that the statute’s imposition of a 260 w eek cap on benefits forworkers who

are permanently and totall y disabled past the age of s ixty bya workrelated injury is irrational. See Vogel , 937 S.W.2d at 862. We observed that a literal application of the statute would lead to the irr ational result of allowi ng a worker who becomes one hund red perce nt perma nently totally disabled at age sixty to

draw only 260 weeks of ben efits, whi le allowi ng the same worker who

becomes ninety percent permanently partiallydisabled at age sixty to dr aw360 weeks of benefits. Based on
our conclusion that “the differential between permanen tly totally and permanently partiallydisabled workers over sixty is irrational,” we reversed the trial court and held that “the 260 week cap set forth i n Tennessee Code Annotated Section 50-6- 207(4)(A)(i) applies to all injured w orkers over six

ty who are awarded benefits under the Workers’ Compensation statute forpermanent partial or permanent t otal disability.” Id. at 862. In so holding, we noted that our conclusion was “req uired to avoid an otherwise irrational result.” Id.

Last year in McIlvain , we applied this statut e in the context of a work er over age sixty who had s ustained a work-relat ed injury resulting

in a di s ability of forty percent to a scheduledmember. See McIlvain , 996 S.W.2d at 184. The employer1 W e not e tha t the G ene ral As sem bly has me t in reg ular s ess ion th ree tim es s ince this C ourt rendered it

s decision i n Vogel , yet Section 207(4) (A)(i) has not been amended to supersede the Vogel decision. -6- in McIlvain claimed that under the statute, i t was entitled to offset

th e employee’s Social Security

old age insurance benefits against h er workers’ compensati on award. Furthermore, th e employer argued that the employee should have been aw arded benefits equivalent to fort y percent o f 260 weeks, the cap set in the statute for workers who ar e injured after age six ty, rather than benefits eq uivalent to forty percentof 400 weeks. In rejecting the employer’s argument s, we observed that “[i]t is well-settled that ‘[w]hen the injury is to a scheduled member, the disability award is exclusivel

y contr olled by the impairment ra ting established by th e General Ass embly for that member.’” Id. at 185 (emphasis in original)(citations omit ted)

. Accordingly, in McIlvain , we held that “Tenn. Code Ann. § 50-6-207(4)(A)(i) applies to workers over age 60 who suffer injurie s to the bo dy as a whole, whe ther permanent partial or permanent total, but not to such workers who suffer scheduled member injuries.” Id. at 185.

Th erefore, in both Vogel and McIlvain , we declared that Tenn. Code Ann. § 50-6-207(4)(A)(i) applies to all injured workers over the

age of sixty who

are awarded workers’ compensation benefits for permanent partial or permanent total disabili ty to the body as a whole. 1 While we were dealing specific ally with the 260

week cap in those cases, the Social Securit y offset at i ssue in this appeal is an i ntegral part of Tenn. Code Ann. § 50-6-207(4)(A)(i). As previou sly stated , the off set is one of two directives

that relate to workers over the age of sixty who are awarded compensa tion benefits. Having previo usly d ecl ared that one of the directive s, the 260 week cap, applies to workers over t he age of s ixty who sustai n permanent partial as wel l as-7-

permanent total disability to the body as a whole, w e can conceive of

no valid reason to refuse to apply the other dir ective, the SocialSecurity offset, to the same class of workers. Statutes must be construed and applied in their entirety. See Cohen v. Cohen , 937 S.W.2d 823, 827 ( Tenn. 1996). This rule of statutory construction militates in favor

of applying the Social Security offset in the same manner that the 260 week cap has previou sly been applied. Moreover, the reasoning which prompted this Court’s decision in Vogel is clearly perti nent to the issue in this appeal. Here, as in Vogel , were we t o hold the Social Security offset applicable to permanent total disability benefits, but inapplicable to permanent partial disabili ty benefits, a worker would r eceive more benefits from a determination of less disability. We decline to construe the statute in a man ner that would produce such an ir rational result. Accordin gly, we hold that the Social Security offset c ontained in Tenn. Code Ann. § 50-6-207(4)(A)(i) applies to workers over age sixty who suffer injuries to the body as
a whole, regardless

if the injury is for permanent p artial or permanent total disability benefits.
B. Computation Having determined that the Socia l Security o ffset i s applica ble, we must next consider whether the tri al court err ed in awarding an offset of one-hal f of the total amount of Social Security ol d age insurance benefits received by McC

oy. McCoy argues that the trial court erred in computing the offset at fifty percent. According to McCoy, the correct method for computing the off set is to co nside r only the contributions

made from June of 1992 by TTC, the employer at the time of the injury, rather than the total amount of employer contr ibutions. McCoy

contends that the trial court’s computation allows an employ er to receive bene

fits i n excess of his-8-

contributions

to the social security fund of the employee, and he argues that such a result is unjust because it allows the employ er to reap a

windfall at the expense o f the injured worker. TTC responds that trial court’s award of a fifty percent offset is consistent

with both the

statutory language a nd the legislative hi story of thestatute.

We emphasize that the role of this Court in construi ng statutesis to ascertain and g ive effect to legislativ e intent. See Cronin v. Ho we , 906 S.W.2d 910, 91 2 (Tenn. 1995). When the language of a statute is unambiguous, legislative intent is to be ascertained from the plain and ordinary mea ning of the stat utory language used. See Carson Creek Vacation Resorts, Inc. v. State, Dep’t of Rev enue , 865 S.W.2d 1, 2 (Tenn . 1993). Where as here, the parties legitimately have different interpretations

of the same st atutory langu age, an ambiguity exist s, and we may consider the legislative hi story and the entire stat utory scheme for inte rpretive guidance. See Carter v. State , 952 S.W.2d 417, 419 (Tenn. 1997); Owens v. State , 9 08 S.W .2d 923, 926 (Tenn. 1995); Lyons v. Rasar , 872 S.W.2d 895, 897 (Tenn. 1994).

As previously set out, the language of the statute c alls for an offset equal to “the am ount of any old age insurance benefit payments attributa ble to emplo ye r c ontri butions.” Significantly, the s tatute does not say “employ er’s contributions” or “the contributions of the employer at the time of the injury.”Accordingly, the language of the statute does not support McCoy’s argument that the offset is limited to only TTC’s contributions . In addition, the legislative his tory indicates that the t rial court correctly computed the offset. Before the provision w as adopted by the General Assembly, the sponsor of the legislation summarized its impact as follows:-9- the effect of this would be a worker who is eligible f or benef its, say, at age 65 becomes injured would have workmen’s compensation benefits forfive years, off-set by one-half the social, or her s ocial security benefit. So if you had a

$500 a month [worker’s compensat ion] benefit, and you had a $500 a month social s ecurity benefit, $250

of the social security benefit would be us ed to offset the workers’ compens ation benefit. So you would have a total benefit in that cas e of $750, as example.
Remarks of Senator Riley Darnel l, Senate Floor Session, April 30, 1992, Tape Nos. S-79, S-81,S-82, and S-83. This statement clearly illustrates t hat th e statute was intended to provide a fifty percent offset of the total amount of Social Security old age insurance benefit s receive d bythe employee. According ly, we agree w ith the trial court that Tenn. Code Ann. § 50-6-207(4)(A )(i) authorizes

an offset of fifty percent of the total amount of any Socia l Security old age ins urance benefits received by employees over sixty w ho suffer injuries to

the bo dy as a whole and are aw arded permanent total or permanent partial disability benefits under th e Workers’ Compens ation La w.

CONCLUSION After careful consideration of the rel evant authorities, w e conclude that the trial court correctly ordered an offset for Social Secu rity under this Court’s decisions in Vogel and McIlvain even thoug h the worker’s compensati on award was for pe rm an en t p ar

ti al di sa bi li ty

be ne fi ts . We

also conclude that the trial court correctly computed the offset to be fifty percent of thetotal amount of Social Secu rity old age insurance benefits received by McCoy. Acc o rdingly, we affirm th e judgment of the trial court.-10- _____________________________________ FRANK F. DROWOTA, III, JUSTICE
Concur: Anderson, C.J. Birch, Holder, Barker, JJ.