Union Bank & Trust Company v. Kirby Boles v. Tn Dept of Labor

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The Second Injury Fund appeals claiming a setoff/credit for the amount of temporary total disability benefits paid to the employee by the employer and a setoff/credit for social security contribution made by the employer. For reason stated the judgment of the trial court is affirmed, and this case is remanded Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court is affirmed. TOM E. GRAY, SP.J., in which FRANK F. DROWOTA, III, J. and JOHN K. BYERS, SR. J., joined. Paul G. Summers, Attorney General and Reporter, and E. Blaine Sprouse, Assistant Attorney General, Nashville, Tennessee for the Appellant, James Farmer, Director of the Tennessee Division of Worker's Compensation Second Injury Fund. Kelly R. Williams, Livingston, Tennessee for the Appellee, Kirby Boles. MEMORANDUM OPINION The trial court found that Kirby Boles, employee, was entitled to an award of 1% permanent and total disability to the body as a whole under Tennessee Code Annotated 5-6- 27(4)(A)(i) and apportioned disability of 47% to the employer, Union Bank and Trust Company, and 53% to the Second Injury Fund. Finding that the employee was more than 6 years of age at the time of the work related accident 26 weeks of permanent total disability were awarded in addition to all temporary total disability benefits paid. Employee Boles was found to be currently receiving social security disability benefits by the Court, and he was ordered to inform the Second Injury Fund within thirty (3) days of receiving any social security old age insurance benefits. The attorney representing Mr. Boles was granted a fee of $7,3.28 which amounted to 2% of the 26 week award, and the trial court commuted to a lump sum 1 weeks of benefits. BACKGROUND Kirby E. Boles was born on the 6th day of May, 1935. On the 9th day of March, 1996 while in the course and scope of his employment with Union Bank and Trust Company he was involved in an automobile accident. Union Bank and Trust Company commenced this action by filing a complaint in the Chancery Court for Overton County, Tennessee at Livingston to have the Court determine therights and responsibilities of the parties, Union Bank, plaintiff, and Kirby Boles, defendant, according to the Workers' Compensation Law, State of Tennessee. Kirby Boles filed an answer and counter- complaint. Thirteen months after the action was commenced Union Bank and Trust Company moved the Court to add the Tennessee Department of Labor, Second Injury Fund as a Third-Party Defendant. In support of the motion, movant attached a copy of an order entered in the Circuit Court for Overton County, Tennessee on the 1th day of February, 1995 whereby Kirby E. Boles was found to have suffered a 28% permanent partial impairment to the body as a whole as a result of an accident to his left shoulder arising out of and in the course and scope of his employment at First Baptist Church, Livingston. The motion was granted, and the Second Injury Fund became a party. No party presented testimony at trial but stipulated as follows: 1. Mr. Boles sustained a compensible injury to the body as a whole on March 9, 1996 as aresult of an automobile accident arising out of and in the course and scope of his employment; 2. Mr. Boles was over the age of 6 at the time of the accident; 3. Mr. Boles was permanently and totally disabled as a result of the injury on March 9, 1996; 4. The proper weekly compensation rate of Mr. Boles is $14.39 per week. -2-