Woods v. Modine Appeal 03S01-9807-CH-00086
Authoring Judge: Howell N. Peoples, Special Judge
Trial Court Judge: The Honorable
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with T.C.A. Section 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff, Doug Black, appeals a determination that his disability is limited to 35 percent to the leg because of the Americans with Disabilities Act (ADA). The defendant, Liberty Mutual Insurance Company (carrier for Roadway Express), asserts the award is excessive in that plaintiff sustained no vocational disability. Both parties assert there is no legal basis for the trial court to retain jurisdiction to modify the award if a court determines that the ADA does not apply. We agree that the result of a separate proceeding under the ADA has no bearing on the disability of the employee and accordingly modify the award. Doug Black was employed by Roadway Express as an over the road truck driver. On September 22, 1995, he injured his left leg as he was exiting his truck. Dr. Joe Luna, an orthopedic surgeon, treated the injury, found torn cartilage in the knee, and did arthroscopic surgery. After the surgery, Mr. Black continued to have mechanical symptoms and giving-away of the leg. In July 1996, a MRI revealed a possible torn anterior cruciate ligament (ACL). Mr. Black had returned to work and postponed further surgery until November 1996. Dr. William L. Johnson, a partner of Dr. Luna, did a reconstruction of the torn ACL. Mr. Black recovered well from the second surgery, but had a cartilage deficit on the weight- bearing surface of the bone and underwent a third surgery for debridement and drilling of that region of his knee. Dr. Johnson testified, by deposition, that Mr. Black has an 18 percent permanent impairment to his leg as a result of the injury; the only permanent work restriction placed on him was that "he should have a cruise control on his truck, and that was primarily as a safety issue in controlling the foot pedals." Dr. Howard Brown, also an orthopedic surgeon, saw Mr. Black on May 22 and June 23, 1997 for a second opinion. Dr. Brown opined that he has a 1 percent permanent medical Black v Liberty Mutual Page 2
Knox
Workers Compensation Panel
Fann v. Advance Transformer Co. 03S01-9811-CH-00124
Authoring Judge: John K. Byers, Senior Judge
Trial Court Judge: Hon. Frank V. Williams, III,
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. Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6- 225(e)(2); Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial court in a workers' compensation case. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). The trial judge found the plaintiff had suffered 4 percent permanent partial disability to both upper arms. The defendant raises two issues on appeal: (1) whether the trial judge erred in awarding disability benefits against the defendant and (2) whether the award of disability benefits to the plaintiff was contrary to the preponderance of the evidence. We affirm the judgment. The plaintiff began employment with the defendant in July or August of 1996. The plaintiff used computers, calculators, typewriters, word processors, fax machines, copiers, forklifts, micrometers, calipers, and other gauges in various jobs he performed for the defendant. In November 1996, the plaintiff began to experience problems with his hands. Dr. Cletus J. McMahon treated the plaintiff and in July 1997 did carpal tunnel surgery on both arms. After the surgery, the plaintiff returned to work for the defendant but was laid off two days later. The plaintiff was not recalled when other employees were recalled to work by the defendant. 2
Knox
Workers Compensation Panel
Jack v. Delany 03S01-9808-CV-00077
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. James B. Scott, Jr.,
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 of findings of fact and conclusions of law. In this appeal, the employer contends (1) the employee failed to give notice of her injury, (2) the claimant's injury did not arise out of the employment relationship and (3) the award of permanent partial disability benefits is excessive. As discussed below, the panel has concluded the judgment should be affirmed. The claimant initiated this action on May 23, 1997 to recover workers' compensation benefits for her injuries. By its answer, the employer admitted the claimant had, in December of 1995, "complained of an injury to her right arm," but denied "that she complained of an injury to her left arm." It affirmatively averred that it provided her with a panel of three physicians, from which she chose Dr. Randall Robbins; and that Dr. Robbins treated her, referred her to other specialists, and performed surgery on her in April of 1996. The employer did not raise the issue of lack of written notice in its answer. The case was tried on May 29, 1998, when, according to the judgment, the only issues submitted to the trial court were "the extent of permanent, partial disability to be awarded to the plaintiff's right arm and whether the plaintiff is entitled to a judgment for a permanent, partial disability to the left arm, and whether the defendant should reimburse unto the plaintiff and her attorney a portion of the pretrial expenses incurred in preparing this matter for trial, and whether Roger L. Ridenour should receive his attorneys fees in a lump sum." After a trial, the court awarded, inter alia, permanent partial disability benefits based on eighty-five percent to the right arm and sixty percent to the left arm, which equates to or seventy-two and one-half percent to both arms. We have reviewed the case 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, as required by Tenn. Code Ann. _ 5-6-225(e)(2). The employee or claimant, Ms. Russell, is fifty-two years old with a tenth grade education and experience as a factory assembler, first at Burlington Hosiery, then Robbins Seat Belt Company, then at Oliver Springs Apparel and finally with this employer, Advance Transformer Company. She gradually developed disabling pain in both arms, but has continued to work. 2
Knox
Workers Compensation Panel
Zonge vs. Woodall M1998-00800-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Thomas W. Brothers
Appellant, a pro se prisoner, brought this legal malpractice action against the appointed appellate counsel in his criminal case. Appellant argued that his conviction would have been reversed but for Appellee's failure to assert in his criminal appeal that the trial court committed reversible error by forcing Appellant to attend trial in prison garb. That argument was made in a supplemental brief filed by Appellant's new appellate counsel and was rejected by the Court of Criminal Appeals. The trial court in this malpractice action granted Appellee's motion for summary judgment. We affirm because Appellant has failed to establish a breach of the standard of care or that he was damaged by counsel's decision not to make an argument which was, in fact, made by new counsel and was unsuccessful.
Chris Dykes vs. State M2005-00948-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Robert G. Crigler
The Petitioner, Chris Allen Dykes, appeals the trial court's denial of his motion to reopen his petition for post-conviction relief. The trial court found the petition to be untimely filed. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. We find the State's motion has merit. Accordingly, the motion is granted and the appeal is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals.
