James D. Henson v. City Lawrenceburg

In this workers compensation action, the trial court awarded the worker 100 percent total disability benefits for a work-related back injury. The responsibility for the judgment was divided on the basis of 45 percent to the employer and 55 percent to the State Second Injury Fund, and it was commuted to a partial lump-sum. On appeal, the employer contends that its apportioned share was excessive. The Second Injury Fund argues that assessing any part of the award against it was error, since the evidence preponderates against a finding of total disability. Even if the disability was total, the Fund contends the award does not exceed 100 percent because prior scheduled-member injury awards are not "to the body as a whole" and may not be added to the present award. Both parties argue that the trial court erred in granting the partial lump-sum award. Our review of the record demonstrates that the evidence does preponderate against the trial courts finding of 100 percent permanent and total disability, and in favor of an award of 75 percent permanent partial disability. We also conclude that the legislative intent and purpose of the Second Injury Fund Statute - the employment of the handicapped - is furthered by equating prior scheduled-member awards to a percentage of the body as a whole. Because the prior scheduled-member workers compensation awards equate to 28 percent of the body as a whole, and the total, when added to the present permanent partial award, exceeds 100 percent, the employer is responsible for 72 percent of the award and the Second Injury Fund is responsible for 3 percent of the award. We have also determined that the trial court erred in granting the partial lump-sum award.