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Powers v. Johnson Controls6/11/2002
ury Fund. The requirements are (1) that at the time of his on-the-job injury, the employee was working for an employer who had properly insured his workers' compensation liability, and (2) that the employer had knowledge of the permanent and pre-existing physical impairment at the time that the employee was hired or at the time the employee was retained in employment after the employer acquired such knowledge, but in all cases prior to the subsequent injury. Tenn. Code Ann. § 50-6-208(a)(2).
At trial, both the claimant and Brothers testified, without objection, that the employer knew of her pre-existing disability. Issues not raised in the trial court may not be raised for the first time on appeal. Simpson v. Frontier Community Credit Union, 810 S.W.2d 147, 153 (Tenn. 1991). Moreover, when issues not raised by the pleadings are tried by expressed or implied consent of the parties, they are treated in all respects as if they had been raised in the pleadings. Tenn. R. Civ. P. 15.02. Thus, by failing to object to the admission of evidence showing knowledge of the prior injury by the employer, the appellant impliedly consented to the answer being amended to conform to the proof. See Farrar v. Farrar, 553 S.W.2d 741 (Tenn. 1977). The contention is without merit.
Finally, the Fund contends the evidence preponderates against the trial court's apportionment of permanent disability benefits between it and the employer. An employee who has previously become physically disabled from any cause and who, as a result of a later compensable injury, becomes permanently and totally disabled, may receive disability benefits from his employer or its insurance company only for the disability that would have resulted from the subsequent injury. However, such employee may be entitled to recover the remainder of the benefits allowable for permanent total disability from the Second Injury Fund. Tenn. Code Ann. § 50-6-208(a)(1).
The Second Injury Fund is liable under subsection (a) of Tenn. Code Ann. § 50-6-208 if (1) an employee has previously suffered a permanent physical disability from any cause or origin, and (2) the employee becomes permanently and totally disabled as the result of a subsequent compensable injury. Under that subsection (a), the prerequisites for imposing liability on the Second Injury Fund are a prior injury, either compensable or non compensable, which caused permanent disability and a subsequent compensable injury which rendered the employee permanently and totally disabled. Perry v. Sentry Ins. Co., 938 S.W.2d 404, 407 (Tenn. 1996). In such case, it is important for the trial judge to make an explicit finding of fact regarding the extent of vocational disability attributable to the subsequent or last injury, without consideration of any prior injuries, for the employer is responsible only for the disability that would have resulted from the subsequent injury, had the earlier injury not existed, and the Fund is liable for the remainder of the award. Allen v. City of Gatlinburg, 36 S.W.3d 73, 77 (Tenn. 2001). Under subsection (a), a permanently and totally disabled employee is entitled to recover from the Second Injury Fund the amount whereby an award for permanent total disability exceeds the award for the subsequent injury. Minton v. State Industries, Inc., 825 S.W.2d at 76-77 (Tenn. 1992).
The trial court in the present case explicitly found the extent of the claimant's disability attributable to the last injury to be 32.5 percent to the body as a whole. Giving due deference to the findings of the trial court, we are unable to say the preponderance of the evidence is otherwise.
For those reasons, the judgment of the trial court is affirmed. Costs are taxed
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