Sitz v. Goodyear Truck Tire Center

OPINION COOPER, Justice. This is an appeal by the Department of Labor, Second Injury Fund, from a judgment of the Chancery Court of Hamilton County ordering the fund to pay 7.5 percent of the benefits due William M. Sitz, who was determined to be totally and permanently disabled. Mr. Sitz injured his back on June 26, 1986, when a tire he was filling with air exploded. This action was brought against his employer, Goodyear Tire & Rubber Company, which, in turn, filed a third party complaint against the Second Injury Fund. On trial, it was determined that Mr. Sitz is now totally and permanently disabled as the result of the injury received on June 26, 1986. It was also determined that plaintiff had previously hurt his back in a work-related incident in 1970, and had settled the earlier claim on the basis of 7.5 percent permanent disability to the body as a whole. The employer did not have knowledge of the prior worker’s compensation settlement until after the claim now under consideration was made. The trial court concluded that knowledge of the prior settlement was not a prerequisite to recovery of Second Injury Fund benefits under T.C. A. § 50-6-208(b), and ordered Goodyear to pay 92.5 percent of the worker’s compensation benefits due Mr. Sitz, and the Second Injury Fund to pay the remaining 7.5 percent. In 1985, the General Assembly reworked the so-called “Second Injury Fund” statute, by deleting subsections (a) and (b) of § 50-6-208 and substituting the present statutory provisions. Section 50-6-208(a) now provides that if the employee has a preexisting permanent impairment, and is subsequently permanently and totally disabled in a compensable accident, the employer is liable only for the disability that [887] would have resulted from the subsequent injury without consideration of the first, the Second Injury Fund paying the difference. The employer must, however, have had actual knowledge of the preexisting disability prior to the subsequent injury, though there is no longer a written record requirement. Subsection (b)(1), the subsection that was the foundation of the chancellor’s determination of liability on the part of the Second Injury Fund, provides that: 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. Benefits which may be due the employee for permanent disability to the body as a whole, after combining awards, shall be paid by the second injury fund. It is the intention of the legislature that once an employee receives an award or awards for permanent disability to the body as a whole, and such awards total one hundred percent (100%) permanent disability, any permanent disability compensation due for subsequent compensable injuries to the body as a whole shall be paid by the second injury fund, instead of by the employer. (Emphasis supplied.) The party claiming compensation against the Second Injury Fund has the burden of proving the existence of previous awards of benefits for permanent disability specific to the body as a whole. T.C.A. § 50-6-208(b)(2). There is no express requirement in either T.C.A. § 50-6-208(b)(l) or (b)(2) that an employer have knowledge of the prior workers’ compensation awards at the time, or during the time, of employment of the injured worker in order for the employer to take advantage of the limitation of an employer’s liability described in T.C.A. § 50-6-208(b)(l). Appellant insists that it is evident from a fair reading of T.C.A. § 50-6-208 that the knowledge requirement set forth in subsection (a) was intended to be carried forward in subsection (b). Further, that unless the knowledge requirement is read into subsection (b), there would be no incentive for an employer to hire or retain employees previously injured in the course and scope of their employment, which after all is the basic purpose behind the creation of the Second Injury Fund. Contrary to the argument of appellant, we find nothing in the language of T.C.A. § 50-6-208 to indicate that the legislature intended the knowledge requirement of section (a) be carried forward into section (b). Rather, the legislature specifically stated its intent in broadening the liability of the Second Injury Fund in subsection (b) — it is (1) to limit the exposure of any and all employers of a worker, throughout the worker’s productive life, for payment of worker’s compensation benefits to a sum total of one hundred percent for permanent disability to the body as a whole, and (2) to insure that the worker loses no benefits by making the Second Injury Fund liable for payment of benefits in the percentage that the total workers’ compensation awards for disability to the body as a whole exceeds 100 percent. A requirement of prior knowledge on the part of an employer would defeat rather than enhance the carrying out of this intent, and we decline to read such a requirement into subsection (b) absent some expression to that effect by the legislature. The judgment of the trial court is affirmed. Costs incident to the appeal will be paid by the Second Injury Fund. HARBISON, C.J., and FONES and O’BRIEN, JJ., concur. DROWOTA, J., dissents.