
    Donna J. OVERMAN v. ALTAMA DELTA CORPORATION.
    Supreme Court of Tennessee, at Jackson.
    Nov. 9, 2005 Session.
    March 16, 2006.
    Robert Joseph Leibovich, Memphis, Tennessee, for the Appellant-Defendant, Altama Delta Corporation.
    Bradley G. Kirk, Lexington, Tennessee, for the Appellee-Plaintiff, Donna J. Over-man.
   OPINION

JANICE M. HOLDER, J.,

delivered the opinion of the court,

in which E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., and CORNELIA A. CLARK, JJ., joined. WILLIAM M. BARKER, C.J., filed a dissenting opinion.

We accepted this interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure to determine the enforceability of the employee’s prospective waiver of her reconsideration rights in a workers’ compensation settlement agreement. We conclude that the waiver provision is contrary to both the plain language of Tennessee Code Annotated section 50-6-114(a) and public policy and, therefore, is unenforceable. Accordingly, we affirm the judgment of the trial court as modified and remand the case to the trial court for further proceedings consistent with this opinion.

On March 25, 2004, the trial court approved a final settlement in a workers’ compensation action between the plaintiff, Donna Overman (“Overman”), and the defendant, Altama Delta Corporation (“Alta-ma Delta”), for injuries that Overman incurred in the course and scope of her employment. The settlement order included a conditional waiver of Overman’s reconsideration rights. The provision provides that:

in the event the Plaintiff or anyone acting on the Plaintiffs behalf, seeks to set aside, modify, amend, reconsider, or change any aspect of the settlement agreement set forth in this order, the Plaintiff agrees to, and is hereby ordered to, immediately return or pay back to the Defendants all settlement proceeds paid to the Plaintiff under this order prior to any hearing or further proceedings relating to the effort to set aside, modify, amend, reconsider or change any aspect of this settlement.

Overman received a lump sum of $67,500.00 after the entry of the settlement order. On May 7, 2004, Altama Delta terminated Overman’s employment after she apparently declined another position that fit within her medical restrictions.

On August 30, 2004, Overman filed a complaint seeking reconsideration of her workers’ compensation settlement. Over-man did not return the settlement proceeds to Altama Delta in accordance with the waiver provision of the settlement agreement. Altama Delta filed a motion to dismiss the complaint pursuant to Rule 12.02(6) of the Tennessee Rules of Civil Procedure. The trial court denied the motion and found that the waiver provision was unenforceable due to Altama Delta’s failure to provide Overman with adequate consideration to support the waiver provision.

The parties filed a joint motion for permission to file an interlocutory appeal. The trial court granted the motion. We subsequently granted review of the interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure.

ANALYSIS

The Workers’ Compensation Law limits an employee’s permanent partial disability award for particular injuries, with the level of the limitation dependent upon whether the pre-injury employer returns the employee to work at a wage greater than or equal to the employee’s pre-injury wage. See Tenn.Code Ann. § 50-6-241(a)(1), (b), (d)(1)(A), (d)(2)(A) (2005). For injuries occurring prior to July 1, 2004, the maximum award is limited to two and one-half times the employee’s medical impairment rating if the employee returns to work at a greater or equal wage. Id. at (a)(1). The maximum award for an employee who has not returned to work at a greater or equal wage is six times the medical impairment rating. Id. at (b).

An employee whose benefits were limited to two and one-half times the medical impairment rating has a statutory right to seek reconsideration of the award if the employee loses his or her employment with the pre-injury employer within 400 weeks of the day the employee returned to work. Id. at (a)(2); see also Brewer v. Lincoln Brass Works, Inc., 991 S.W.2d 226, 228-30 (Tenn.1999) (permitting reconsideration where the original workers’ compensation award sought to be enlarged was paid in lump sum). We, therefore, must determine the validity of the prospective waiver of an employee’s statutory reconsideration rights.

The interested parties in a workers’ compensation case have “the right to settle all matters of compensation between themselves.” Tenn.Code Ann. § 50-6-206(a)(1) (2005). Tennessee Code Annotated section 50-6-114(a), however, provides that “[n]o contract or agreement, written or implied, or rule, regulation or other device, shall in any manner operate to relieve any employer, in whole or in part, of any obligation created by this chapter, except as provided in subsection (b),” which relates to offsets from an employer-funded disability plan.

The legislature has enacted additional provisions permitting an employee who suffers from specific illnesses to waive the right to certain workers’ compensation benefits. See, e.g., Tenn.Code Ann. §§ 50-6-213(a) (2005) (epileptics); 50-6-307(a) (2005) (occupational diseases); 50-6-307(b) (2005) (heart conditions). The Workers’ Compensation Law, however, does not contain a provision approving waivers of employees’ reconsideration rights.

The settlement agreement in the present case falls within Tennessee Code Annotated section 50-6-114(a) as a “contract or agreement ... or other device.” The waiver provision contained in the settlement agreement effectively relieves Al-tama Delta of a portion of its obligations under the Workers’ Compensation Law. The waiver provision, therefore, is invalid under the plain language of section 50-6-114(a). See Perrin v. Gaylord Entm’t Co., 120 S.W.3d 823, 826 (Tenn.2003) (requiring courts to apply a statute’s unambiguous terms in accordance with its plain and ordinary meaning).

Furthermore, enforcement of the prospective waiver provision would thwart the policy underlying an employee’s right to seek reconsideration of workers’ compensation benefits. See, e.g., Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 704, 65 S.Ct. 895, 89 L.Ed. 1296 (1945) (holding that waiver of a statutory right is invalid where such waiver is contrary to the legislative policy it was designed to effectuate). We have recognized an interest in ensuring that an employer has not contemplated a discharge previously, decided to temporarily retain the employee as a means to benefit from the statutory cap, and then discharge the employee who has received workers’ compensation benefits. Hardin v. Royal & Sunalliance Ins., 104 S.W.3d 501, 506 (Tenn.2003). Tennessee Code Annotated section 50—6—241(a)(2) was enacted “to promote uniformity in workers’ compensation awards and to protect a worker whose benefits were capped by the statute from being employed only long enough for the employer to reap the benefits of the statutory cap.” Id. at 505.

Settlements providing for the prospective waiver of an employee’s reconsideration rights create a disincentive for the employer to continue to employ the injured employee after approval of the settlement agreement. See Cange v. Stotler & Co., 826 F.2d 581, 595 n. 11 (7th Cir.1987) (recognizing that “prospective waivers of statutory rights tend to encourage violations of the law by notifying the wrongdoer in advance that he or she can act with impunity”). Accordingly, we conclude that the waiver provision in the settlement agreement is unenforceable.

CONCLUSION

We conclude that the waiver provision in the settlement agreement is contrary to both the plain language of Tennessee Code Annotated section 50-6-114(a) and public policy and, therefore, is unenforceable. Accordingly, we affirm the judgment of the trial court as modified, and we remand the case to the trial court for further proceedings consistent with this opinion.

Costs of appeal are taxed to the appellant, Altama Delta Corporation, and its surety, for which execution may issue if necessary.

WILLIAM M. BARKER, C.J., filed a dissenting opinion.

WILLIAM M. BARKER, C.J.,

dissenting.

Because I believe that the majority misconstrues and misapplies the statutes relevant to this case, I respectfully dissent.

The majority neglects the true import of Tennessee Code Annotated section 50-6-206(a)(1) (2005), which gives the interested parties in a workers’ compensation case “the right to settle all matters of compensation between themselves[,]” by misconstruing the meaning of Tennessee Code Annotated section 50-6-114(a) (2005), which provides that “[n]o contract or agreement ... or other device, shall in any manner operate to relieve any employer ... of any obligation created by this chapter except herein provided.” I cannot accept the majority’s conclusion that the settlement agreement here — once stamped with the trial court’s imprimatur, as is required by statute to give it effect under Tennessee Code Annotated section 50-6-241 — constituted a “contract ... or other device” prohibited by Tennessee Code Annotated section 50-6-114(a) to relieve the employer of its obligations.

I find it reasonable to include among the “except[ions] ... herein provided” section 50-6-206(a)(1)’s provision allowing “[t]he interested parties ... the right to settle all matters of compensation between themselves” — which would include settlement agreements that provide for knowing and intelligent waiver of reconsideration rights under a court’s supervision. Indeed, a workers’ compensation settlement agreement stamped with a trial court’s imprimatur is not a “contract!,] ... agreement!,] ... rule, regulation or other device” prohibited by statute, but rather a, final judgment of the court that can be issued only after a specific finding that “the employee is receiving, substantially, the benefits provided by the Workers’ Compensation Law.” Tenn.Code Ann. § 50-6-241. In other words, section 50-6-114(a) is properly construed only to prohibit employers from making, without the approval of a trial court, “outside deals” aimed at abrogating benefits that the employer is required to provide under the Workers’ Compensation Act. By its language, section 50-6-114 was clearly not intended to affect the judgments of courts of law.

Furthermore, a plain reading of recent amendments to Tennessee Code Annotated section 50-6-241(d)(1)(A)-(B) (2005) strongly rebuts the holding in this case. “For injuries occurring on or after July 1, 200k, ... an employee shall not be permitted to waive or forfeit, and the parties shall not be permitted to compromise and settle, the employee’s rights to reconsideration pursuant to this section.” (Emphasis added.) Because this new statutory prohibition against waivers of reconsideration rights expressly applies only after a specified date, the statute implies that such waivers for injuries occurring before that date are permissible. If the General Assembly had intended the absolute prohibition that the majority declares today, it would not have inserted this qualification into the provision.

The General Assembly passed these amendments to Tennessee Code Annotated section 50-6-241(d)(1)(A)-(B) against a backdrop of cases from various Workers’ Compensation Panels that consistently and repeatedly held exactly the opposite of the majority’s new rule today — i.e., that waivers of reconsideration rights are valid and consistent with public policy. See, e.g., Nay v. Resource Consultants, Inc., No. M1996-00016-WC-R3-CV, 2000 WL 4255, (Tenn.Workers Comp.Panel, Jan.5, 2000); Ray v. Yasuda Fire and Ins. Co., No. 01S01-9710-CH-00223, 1998 WL 707775 (Tenn.Workers Comp.Panel, Oct.12, 1998); Swiger v. Nashville Union Stockyard Rest. Co., No. M2002-02971-WC-R3-CV, 2004 WL 123314 (Tenn.Workers Comp.Panel, Jan.27, 2004). To repeat, although the General Assembly has since rejected the public policy judgments of these Panels, it did so in a qualified way— by inserting a date only after which the prohibition of waivers of reconsideration rights would take effect. “The legislature’s failure to express disapproval of the judicial construction ... provides persuasive evidence of legislative adoption of that judicial construction.” Calaway ex rel. Calaway v. Schucker, 193 S.W.3d 509, 521, 2005 WL 3338655 at *9, (Tenn.2005) (Holder, J., dissenting). By commencing the prohibition of such waivers on a specific date, the General Assembly failed to expressly disapprove waivers of reconsideration rights for injuries occurring before that date. Thus, I believe we have ample indication of the legislature’s adoption of the above-cited Panels’ holdings — that such waivers are permissible — for workplace injuries, like Ms. Overman’s, that occurred before July 1, 2004. Even the plaintiff here conceded that the Panel’s holding in Nay — which upheld absolute waivers of reconsideration rights (as opposed to conditional waivers, the issue in this case) — is valid for settlements of workplace injuries occurring before the statutory prohibition!

Put simply, I believe the majority errs by applying the legislature’s rejection of the public policy judgments reflected in Panel decisions such as Nay to cases in which the legislature did not intend that rejection to apply. By including a starting date of July 1, 2004 after which waivers of reconsideration rights are not permissible, the legislature signaled that such waivers before that date are permissible. Ms. Ov-erman’s injuries were reported in 2002— before the statutory prohibition of waivers of reconsideration rights went into effect. Thus, I believe her waiver is valid.

Fortunately, the precedential weight of this case — and its real-world effects — will be negligible. Because of the General Assembly’s recent prohibition of waivers such as this one for injuries occurring on or after July 1, 2004, the majority’s holding today applies only to settlements for workplace injuries occurring before that date. 
      
      . For injuries occurring on or after July 1, 2004, the maximum award is limited to one and one-half times the employee’s medical impairment rating. Tenn.Code Ann. § 50-6-241(d)(1)(A) (2005).
     
      
      . Tennessee Code Annotated section 50-6-241(a)(2) (2005) provides in pertinent part that:
      the courts may reconsider, upon the filing of a new cause of action, the issue of industrial disability. Such reconsideration shall examine all pertinent factors, including lay and expert testimony, employee’s age, education, skills and training, local job opportunities, and capacity to work at types of employment available in claimant’s disabled condition. Such reconsideration may be made in appropriate cases where the employee is no longer employed by the pre-injrny employer and makes application to the appropriate court within one (1) year of the employee’s loss of employment, if such loss of employment is within four hundred (400) weeks of the day the employee returned to work.
     
      
      . To the contrary, the legislature has clarified that employees who are injured on or after July 1, 2004, are prohibited from waiving their reconsideration rights. Tenn.Code Ann. § 50-6-241 (d)(1)(B)(v) (2005).
     
      
      . The trial court found that the waiver provision was unenforceable due to Altama Delta’s failure to provide Overman with adequate consideration. We conclude, however, that the record clearly demonstrates that Altama provided adequate consideration to support the waiver provision.
     
      
      . I note also that it is elementary that, as a general matter, legislation applies prospectively only. See Elmer E. Smead, The Rule Against Retroactive Legislation: A Basic Principle of Jurisprudence, 20 Minn. L.Rev. 775, 775-76 (1936).
     
      
      . Indeed, Justice Holder, the author of the majority's opinion in this case, participated in a Workers’ Compensation Panel that applied the rule that the majority today rejects— namely, that a knowing and intelligent waiver of a cause not yet vested is valid in workers’ compensation cases. Campbell v. Jim Keras Buick Co., No. W2003-00158-WC-R3-CV, 2004 WL 442692 at *4 (Tenn.Workers Comp.Panel, March 10, 2004) (holding that the employee did not make a knowing and intelligent waiver because the agreement was not court-approved).
     