Patricia Love vs. American Olean Tile Company and Liberty Mutual Insurance Company, and Sue Ann Head, Director of the Divison of Workers' Compensation, State of Tennessee - Concurring/Dissenting

I rely on my concurring and dissenting opinion in Bomely v. Mid-American Corp., ___ S.W.2d ___ (Tenn. 1998). While I agree with the majority's conclusion that awards of permanent and total disability are payable to age sixtyfive, I continue to disagree, as voiced in my Bomely dissent, with the majority's analysis of apportionment which discourages employers from hiring the handicapped and is contrary to the stated legislative purpose behind the Second Injury Fund legislation. An employer's liability should be limited to the first 400 weeks of benefits unless the subsequent injury would have in and of itself caused permanent and total disability in the absence of any prior injuries or disabilities. In such cases, the employer should bear responsibility for the entire award to age sixty-five.