Juanita Boling, Appellee v. Sak's Incorporated A/K/A Hecht's

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting findings of fact and conclusions of law. The issues presented pertain to a 71 year old employee of Sak's Incorporated who sustained two separate injuries. The employee and Sak's settled the first case, involving injuries to the left shoulder, for the maximum benefits stating in the settlement that the employee was "1% permanently partially disabled." The matter on appeal involves an injury to the back that occurred within one month of the prior injury. The trial court found the employee permanently and totally disabled from her back injury and awarded her the maximum benefits. Moreover, the trial court construed the prior order as a finding of 1% permanent total disability to the body as a whole and held the appellant, Second Injury Fund of the Department of Labor, liable for the entire award for the back injury. For reasons stated herein, the panel affirms the judgment of the trial court as modified. Tenn. Code Ann. _ 5-6-225(e)(3) Appeal as of Right; Judgment of the Chancery Court Affirmed. Frank G. Clement, Jr., Sp. J., delivered the opinion, in which Frank F. Drowota III, C.J., and Joe C. Loser, Jr., Sp. J., joined. J. Frank Thomas, Leitner, Williams, Dooley & Napolitan, PLLC, Nashville, TN, for appellant, Sak's Incorporated. Paul G. Summers and E. Blaine Sprouse, Attorney General, Nashville, TN, for appellant, Second Injury Fund. Daniel C. Todd, Todd and Floyd, PLC, Nashville, TN, for appellee, Juanita Boling. Memorandum Opinion Juanita Boling (Boling), the employee-appellee, began working at Sak's department store in 1993. Boling was 71 years old in January and February, 21 when she sustained two injuries while working at Sak's. On January 31, 21, Ms. Boling injured her left shoulder. She received medical treatment and returned to work while still under the care of a physician. Less than one month later, on February 27, 21, she injured her back. Ms. Boling underwent surgery for the shoulder injury in April of 21. She did not have surgery on her back. Ms. Boling brought claims against her employer and the workers' compensation insurer, Liberty Mutual Insurance Company, for both injuries. Initially, she filed two civil actions against Sak's and Liberty Mutual, one action for each respective injury. Ms. Boling later filed a third action, this one against the Second Injury Fund (the "Fund").1 Moreover, the defendants added the Fund as a third party defendant, seeking indemnification or contribution for any benefits Ms. Boling may receive in excess of the maximum benefits of 26 weeks. In February of 22, Sak's and Liberty Mutual settled the claim for Ms. Boling's shoulder injury for the maximum benefits available to an employee over the age of 6 years, being 26 weeks of compensation.2 In the agreed order settling the claim for the right shoulder, the parties stated that the award to Ms. Boling of two hundred sixty (26) weeks of benefits was "essentially equivalent to one hundred percent (1%) permanent partial disability to the body as a whole." The parties did not settle the claim for Ms. Boling's back injury. The trial court consolidated the two remaining actions, the one concerning the back injury with the plaintiff's action against the Fund. This appeal arises from the two consolidated actions. The case that was settled is not before us; however, the terms of the settlement are relevant to the issues before us and are discussed. The claim for the back injury went to trial in October of 22. The trial court found that Ms. Boling was rendered permanently and totally disabled from her back injuries and awarded Ms. 1Ms. Boling initially filed two complaints for her injuries on October 22, 21, against her employer, Sak's Incorporated, a/k/a Hechts, and its insurance carrier Liberty Mutual Insurance Company, being docket numbers 28318 and 2832. Sak's and Liberty Mutual filed an Answer on November 3, 21. On February 27, 22, Ms. Boling filed a third civil action, this one against the Second Injury Fund, being docket number 28582. Also on February 27, 22, Sak's and Liberty Mutual filed a motion to add the Second Injury Fund as a third party defendant in docket number 28318. Before the trial for Ms. Boling's back injury in docket number 28318, Boling, Sak's and Liberty Mutual settled the claim concerning the left shoulder in docket number 2832. The settlement for the shoulder injury was subsequently deemed by the trial judge to constitute a settlement for 1% permanent total injury to the body as a whole. 2Workers' compensation awards to persons over the age of 6 are capped at 26 weeks. Tenn. Code Ann. _ 5-6-27(A)(I). Boling was 71 years old at the time of her injuries. 2