IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE FILED January 11, 1999 LINDA S. SEALS, ) ) Cecil W. Crowson Plaintiff/Appellee, ) Appellate Court Clerk ) v. ) NO. 03S01-9704-CH-00044 ) ENGLAND/CORSAIR UPHOLSTERY ) MANUFACTURING COMPANY, INC., ) ) Defendant/Appellant, ) ) DINA TOBIN, DIRECTOR OF ) THE DIVISION OF WORKERS’ ) COMPENSATION, TENNESSEE ) DEPARTMENT OF LABOR, ) SECOND INJURY FUND, ) ) Defendant/Appellee. )

CONCURRING OPINION

I concur in the majority's decision to remand this case to the trial court for a determination as to the extent of the worker's vocational disability attributable to the worker's subsequent physical and mental disabilities. I continue to adhere to my dissent in Bomely v. Mid America Corp., 970 S.W.2d 929 (Tenn. 1998), in which I concluded that Tenn. Code Ann. § 50-6-208(a) is applicable when there is a subsequent injury and the employee is rendered permanently and totally disabled. Subsection (b), however, should apply only when the employee is still able to earn a wage or be gainfully employed but has received compensable vocational disabilities that exceed 100 percent or 400 weeks of compensation.

Janice M. Holder, Justice