IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE FILED January 4, 1999 WAYNE ELDRED HILL, ) Cecil W. Crowson ) Appellate Court Clerk Plaintiff/Appellee, ) ) v. ) NO. 03S01-9608-CH-00086 ) CNA INSURANCE COMPANY, ) ) Defendant/Appellee, ) ) and ) ) LARRY BRINTON, JR., DIRECTOR ) OF THE DIVISION OF WORKERS’ ) COMPENSATION, TENNESSEE ) DEPARTMENT OF LABOR, ) SECOND INJURY FUND, ) ) Defendant/Appellant. )

CONCURRING OPINION

I concur in the majority's holding that this case falls within the purview of

Tenn. Code Ann. § 50-6-208(a). I, however, 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