Darrell Swearengin v. Pacific Employers & Dina Tobin, Dir.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. There are no issues of fact in dispute in this case. All sides agree that the plaintiff is totally and permanently disabled and that he qualifies for payment until age 65. Because the injury in this case was subsequent to previous injuries, the Second Injury Fund incurred liability under Tenn. Code Ann. _ 5-6-28(a). The employer and the Second Injury Fund agree that their liability is properly apportioned at 25 percent to the employer and 75 percent to the Second Injury Fund. The trial judge ordered the employer and the Second Injury Fund to make payment concurrently and a mathematical formula was reached which would fulfill each of the payor's liability for their portion of the award when the plaintiff reached age 65. The employer asserts its liability should be limited to 4 weeks and insists the trial court properly ordered concurrent payment by it and the Second Injury Fund. The employer concedes these issues would be resolved by the decision of the Supreme Court in Bomely v. Mid-America Corp., ___ S.W.2d ___ (Tenn. 1998).1 The Supreme Court has decided Bomely and the issues raised herein by the employer have been decided adversely to it. The Supreme Court held the percentage of liability of an employer in cases such as this shall not be limited to the relationship of its percentage of liability to 4 weeks. Rather, the Court held the liability would be apportioned over the total amount of the award in accordance with the percentage of liability affixed to the employer and the Second Injury Fund. Further, the Court held that the employer shall pay its portion of the award first and the Second Injury Fund shall commence payment when the employer has satisfied its liability. The trial court's judgment requiring concurrent payment by the employer and the Second Injury Fund and limiting the employer's liability to 25 percent of 4 1 This appeal was filed April 18, 1997 and the opinion in Bomely was filed by the Supreme Court on May 26, 1998. We have abided the decision in that case to decide this case. 2