Charles Juricak v. Exclusively Temporary, Inc.,

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the Second Injury Fund (the fund) questions the competency and sufficiency of a Stipulation of Settlement from another state to permit recovery from the fund. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Criminal Court Affirmed JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and WILLIAM H. INMAN, 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, Division of Workers' Compensation, Tennessee Department of Labor and Workforce Development, Second Injury Fund B. Keith Williams, Lebanon, Tennessee, for the appellee, Charles Juricak D. Brett Burrow, Brewer, Krause & Brooks, Nashville, Tennessee, for the appellees, Exclusively Temporary, Inc. and Zurich American Insurance Company MEMORANDUM OPINION The employee or claimant, Mr. Juricak, initiated this civil action against the employer, Exclusively Temporary, Inc., its insurer, Zurich Insurance Company, and the Second Injury Fund to recover workers' compensation benefits for an allegedly work related shoulder injury that occurred on August 2, 2. The complaint further alleged that the injury and resulting disability were superimposed upon a previous injury for which the claimant had received an award under Florida's Workers' Compensation Law. The employer and its insurer, by a cross-claim against the Second Injury Fund, averred that the claimant was totally and permanently disabled as a result of the second injury and that the employer's liability should not exceed 1 percent disability. The Second Injury Fund denied any liability. After a trial, the trial court awarded permanent partial disability benefits, in favor of the claimant and against the Second Injury Fund, based on 95 percent permanent partial disability to the body as a whole. The fund has appealed. For injuries occurring on or after July 1, 1985, appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2) (21 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.