Sam Spicer, et al. v. Stace Thompson, et al.
M2002-03110-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Clara Willis Byrd

Appellant Don Pickard appeals the action of the trial court finding that he defamed Sergeant Sam Spicer in public statements to the news media. Spicer cross appeals from the action of the trial court in dismissing his malicious prosecution action against Don Pickard, Stace Thompson and Howard Morris. We affirm the action of the trial court in the defamation case and affirm the action of the trial court in the malicious prosecution case as to Howard Morris. The malicious prosecution case against Don Pickard and Stace Thompson is affirmed in part and reversed in part. The case is remanded to the trial court for further proceedings.

State of Tennessee v. Roger Bryan
M2003-01366-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Lee Russell

The Appellant, Roger Dale Bryan, was convicted of driving under the influence (DUI), fourth offense, and driving on a revoked license, third offense, by a Bedford County jury. The verdict returned by the jury found Bryan guilty of both driving and being in physical control while under the influence. On appeal, Bryan challenges the legal sufficiency of the proof supporting each basis for conviction. After review of the record, we find the evidence sufficient for both and affirm the judgments of conviction, which were merged into a single conviction for DUI.

State of Tennessee v. Bryan Miller
M2003-01434-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge J. Curtis Smith

The Appellant, Bryan K. Miller, appeals his conviction for driving under the influence (DUI), fourth offense. On appeal, Miller raises the single issue of whether the evidence was sufficient to support his conviction. Finding the evidence legally sufficient, the judgment is affirmed.

Skyla Sepeda Smith v. Cherry Lindamood, Warden, and State of Tennessee
M2003-01872-CCA-R3-HC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The petitioner, Skyla Sepeda Smith, filed a petition for habeas corpus relief in the Davidson County Criminal Court. In the petition she alleged that the conviction she received after pleading guilty to one count aggravated child abuse is illegal and void because a conflict between the guilty plea and the judgment effectively resulted in an illegal sentence. The Davidson County Criminal Court dismissed the petition. Because the petitioner does not present a cognizable claim for habeas corpus relief, we affirm the dismissal of the petition.

Harrison Pearison v. State of Tennessee
E2003-02158-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge Douglas A. Meyer

The petitioner, Harrison Pearison, appeals the denial of his petition for post-conviction relief. In this appeal, he asserts that he was denied the effective assistance of counsel. The judgment of the post-conviction court is affirmed.

State of Tennessee v. Chad Kilgore
E2003-01112-CCA-R7-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge James E. Beckner

In 1998, the defendant, Chad Kilgore, who was indicted for aggravated assault, was determined to be incompetent to stand trial and ordered into a forensic services unit for treatment. The defendant was never transferred from a local mental health care facility. In 2003, the defendant filed a motion seeking relief from the prior order. After a hearing, the trial court denied the motion and directed transfer. This extraordinary appeal followed. Because the appeal was improvidently granted, it is dismissed.

Robert William Arndts, by Conservator, Carol Zeliff, Darrell R. Smith, v. Violet A Bonner and Tommy L. Raines
E2003-02257-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Chancellor Jerri S. Bryant

Action was filed by plaintiff's Conservator to recover assets transferred by his wife prior to her death. The Trial Judge awarded certain assets to plaintiff and plaintiff appealed.

Donald Wesley Evans v. Peggy Jane Evans
M2002-02954-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Russell Heldman

This case arises from a divorce action between the Appellant and Appellee. After a hearing, the trial court divided the marital property, granted Appellee alimony in futuro, and awarded Appellee her attorney's fees. After denying Appellant's motion to alter or amend the judgment, the trial court increased Appellee's award of attorney's fees. Appellant appeals to this Court, and, for the following reasons, we affirm in part, modify in part, and remand for further proceedings consistent with this opinion.

James Walter Young v. Nashville Electric Service
M2003-00020-SC-WCM-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Ellen H. Lyle

In this workers’ compensation appeal, the Special Workers’ Compensation Appeals Panel (“Appeals Panel”) affirmed the trial court’s judgment, finding that the employee failed to carry his burden of proof as to causation. The employee has filed a motion for review pursuant to Section 50- 6-225(e)(5)(B), Tennessee Code Annotated (Supp. 2003). That statute requires that a motion for review be filed within fifteen days of the issuance of the Appeals Panel’s decision. We hold that the fifteen-day period for filing a motion for review is jurisdictional and that the Court therefore is without jurisdiction to consider a motion that is not timely filed.

State of Tennessee v. Sheila Teresa Gaye Bobadilla and Benjamin Bernal Bobadilla
E2003-02369-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge James E. Beckner

The defendants, husband and wife Benjamin Bernal Bobadilla and Sheila Teresa Gaye Bobadilla, were each charged by the Greene County Grand Jury with possession of more than .5 grams of cocaine with the intent to sell or deliver, a Class B felony, and possession of drug paraphernalia, a Class A misdemeanor. Following the trial court's denial of their motions to suppress, Benjamin Bobadilla pled guilty to the indicted offenses in exchange for an effective eight-year sentence as a Range I, standard offender, and Sheila Bobadilla pled guilty to facilitation of possession of cocaine with the intent to sell or deliver, a Class D felony, and the misdemeanor drug paraphernalia count of the indictment in exchange for an effective three-year sentence as a Range I, standard offender. Pursuant to Tennessee Rule of Criminal Procedure 37(b)(2), both defendants reserved identical certified questions of law; namely, whether the search warrant and accompanying affidavit issued for their home violated the United States and Tennessee Constitutions as well as Tennessee Rule of Criminal Procedure 41(c). Following our review, we affirm the judgments of the trial court.

State of Tennessee, Department of Children's Services v. K.L.K.
E2003-2452-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Suzanne Bailey

This appeal by K.L.K. (“Mother”) challenges the Juvenile Court’s conclusion that there was clear and convincing evidence to terminate Mother’s parental rights on three statutory grounds, and further challenges that there was clear and convincing evidence that termination of Mother’s parental rights was in her daughter’s best interest. We conclude there was no clear and convincing evidence to terminate Mother’s parental rights on two of the three grounds relied upon by the Juvenile Court, but that there was clear and convincing evidence to support the third ground. However, we also conclude there was no clear and convincing evidence that termination of Mother’s parental rights was in the best interest of the child. The judgment of the Juvenile Court is, therefore, reversed.

Christy Johnson, et al. v. Duncan E. Ragsdale
W2003-01257-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge John R. McCarroll, Jr.

This case involves the dismissal of Appellant’s legal malpractice claim against Appellee on the basis that Appellee, after the initial dismissal of Appellant’s medical malpractice claim, failed to file a County entered a judgment for Appellee. Appellant subsequently appealed this decision to the Circuit Court of Shelby County, which dismissed Appellant’s cause for lack of jurisdiction. We reverse the circuit court’s decision and remand for further proceedings. Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit

Gregory Woods v. Dover Elevator Systems,
W2003-01548-WC-R3-CV
Authoring Judge: Larry B. Stanley, Jr., Sp. J.
Trial Court Judge: Dewey C. Whitenton, Chancellor
The Employer/Appellant contends: (1) that the trial court erred in determining that the Employee's injury was a compensable exacerbation of a pre-existing injury or condition without additionally finding an advancement, anatomical change, or an actual progression of the underlying disease; and (2) that the trial court erred in finding that the Employee gave proper notice of an injury to his neck and shoulder; and (3) that the trial court's award of forty-five percent (45%) permanent partial disability to the body as a whole was excessive and not supported by a preponderance of the evidence. As discussed herein, the panel has concluded that the judgment of the trial court should be affirmed.

James Walter Young v. Nashville Electric Service
M2003-00020-WC-R3-CV
Authoring Judge: Allen W. Wallace, Sr. J.
Trial Court Judge: Ellen Hobbs Lyle, Chancellor
. James Walter Young ("Employee") has appealed the trial court's decision in this case which held that Employee had failed to carry his burden of proof as to causation. The trial court denied workers' compensation benefits. As discussed below, the panel has concluded that the judgment of the Chancery Court should be affirmed.

State of Tennessee v. Calvin Reeves
M2002-02976-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Allen W. Wallace

Following a revocation hearing, the trial court revoked the probation of Defendant, Calvin Reeves, and ordered him to serve the remainder of his sentence in confinement. Defendant does not appeal the revocation of his probation but argues that the trial court erred in imposing a sentence of confinement instead of an alternative form of sentencing. After a thorough review of the record in this matter, we affirm the judgment of the trial court.

In Re: A.M.T., Z.T.R. and K.W.T.
M2003-02926-COA-R3-PT
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Judge Betty Adams Green

Two children were placed in the custody of the Department of Children’s Services because of the mother’s inability to provide stable and sanitary housing. The Department established permanency plans whereby the mother would obtain and maintain stable and sanitary housing, pay child support, attend parenting classes, work with Homemaker Services to learn how to keep the home clean, obtain a parenting assessment, and undergo counseling for her mental health issues. A third child was born while the mother’s other two children were in the Department’s custody. This child was born prematurely and required extensive hospitalization and was also placed in the Department’s custody. The Department filed a petition to terminate the mother’s parental rights as to all three children, which the juvenile court granted on the grounds of abandonment due to failure to pay child support, failing to comply with the permanency plans and persistent conditions. We reverse the juvenile court’s finding of abandonment, but affirm the termination of parental rights based on persistent conditions and failure to comply with the permanency plan. We also affirm the juvenile court’s finding that termination of the mother’s parental rights is in the best interests of the children.

In Re: A.M.T., Z.T.R. and K.W.T. - Concurring
M2003-02926-COA-R3-PT
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Betty Adams Green

I concur in the judgment that clear and convincing evidence establishes abundant grounds for the termination of the parental rights of the mother in  this case and further establishes that it is in the best interests of the  children to terminate her parental rights.

State of Tennessee v. Carl E. Muncey, A/K/A, Boo Muncey
E2003-02314-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Phyllis H. Miller

A Sullivan County Criminal Court jury convicted the defendant, Carl E. Muncey, of possession of cocaine, possession of marijuana, and possession of Alprazolam, Class A misdemeanors, and the trial court sentenced him to eleven months, twenty-nine days for each conviction and fined him a total of $2,500. The trial court ordered that the defendant serve his sentences for the possession of cocaine and marijuana convictions consecutively and that all of the convictions be served consecutively to Washington County sentences. The defendant appeals, claiming (1) that the trial court improperly applied enhancement and mitigating factors; (2) that the trial court erred by ordering consecutive sentencing; and (3) that the trial court erred by denying his request for alternative sentences. We conclude that the trial court properly sentenced the defendant relative to the lengths, manner of service, and consecutive nature of the offenses in this case. However, we conclude that the trial court erred in ordering these sentences to be served consecutively to the Washington County sentences, and we remand the case for modification of the judgments by deleting any reference to the Washington County cases.

David Blurton and wife, Virginia Blurton, v. Grange Insurance & Casualty Company
W2003-01177-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor George R. Ellis

This is a declaratory judgment action to establish coverage under an insurance policy. The  plaintiffs’ home was insured by a homeowners policy with the defendant insurance company. The insurance company canceled the policy for nonpayment of the premium and claimed that it mailed a notice of cancellation to the insureds at that time. Six months later, the plaintiffs’ home was damaged by fire, and they filed a claim on their policy. The insurance company denied the claim. The plaintiffs filed this lawsuit to recover on the policy, asserting that they never received the cancellation notice, and that the insurance company did not properly cancel the policy. At trial, the insurance company representative testified about the company’s customary routine of sending cancellation notices, and it was undisputed that the insurance agent and the mortgagees received notices. The trial court held in favor of the plaintiffs based on, among other things, its determination that the insurance company did not prove that it had mailed a cancellation notice to the plaintiffs. The insurance company now appeals. We reverse, finding that the evidence preponderates in favor of a finding that the cancellation notice was mailed to the plaintiffs.
 

State of Tennessee v. Latosha S. Martin, Alias Latosha S. Johnson
E2003-02663-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Mary Beth Leibowitz

The appellant appeals from an order revoking her probation. After review, we conclude that the violations of probation conditions were supported by a preponderance of the evidence and affirm the trial court's judgment.

Yasmond Fenderson v. State of Tennessee
E2003-02995-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Richard R. Baumgartner

The petitioner contends that the trial court erred in dismissing his petition for writ of error coram nobis. We conclude that the trial court did not err in finding that the petition is time barred and the petitioner has not advanced any grounds for which the statute of limitations should be tolled. We affirm the dismissal by the trial court.

Estate of Robert Samuel Reed, Deceased, Richard Gossum, Administrator C.T.A., John R. Reed v. R. S. Reed and Sons, Inc.
W2003-00210-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor George R. Ellis

This case arises from the Estate’s suit to recover a debt from defendant Corporation. The parties reached an agreement regarding payment of the debt, and the trial court entered a consent order reflecting the terms of this agreement. Appellant then filed a rule 60.02 motion for relief from the consent order. The lower court denied the motion, finding that Appellant was not a party of record in the suit and, accordingly, had no standing to challenge the judgment. We affirm.
 

Margaret J. Ballinger v. Decatur County General
W2003-01358-WC-R3-CV
Authoring Judge: Allen W. Wallace, Sr.J.
Trial Court Judge: C. Creed McGinley, Circuit Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation 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. Employee entered a court-approved settlement of her workers' compensation claim relating to an injury that occurred while she was in the course and scope of her employment. After the settlement, Employee sustained a new injury that arose out of the treatment she received for the injury encompassed by the settlement. The trial court granted summary judgment in favor of Employer, finding that Employee's injury was not a subsequent or second injury that is compensable under Tennessee Code Annotated section 5-6-28. We affirm the trial court's grant of summary judgment. Tenn. Code Ann. _ 5-6-225(e) (2 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed Allen W. Wallace, Sr.J., in which Janice M. Holder, J. and E. Riley Anderson, J., joined. James S. Higgins, Nashville, Tennessee, for appellant, Margaret Ballinger. John Dean Burleson, Jackson, Tennessee, for appellees, Decatur County General Hospital and Virginia Insurance Reciprocal. Juan G. Villasenor, Assistant Attorney General, Nashville, Tennessee, for appellee, Department of Labor, Second Injury Fund. MEMORANDUM OPINION FACTS The facts of this case are not in dispute. On November 16, 1999, Employee entered a joint petition for approval of a settlement of her workers' compensation claim relating to a low back injury that occurred while she was in the course and scope of her employment with Decatur County Hospital. Said settlement provided for compensation based upon a seventy-two percent partial disability to the body as a whole, and also provided future medical treatment. Under the settlement agreement, Employee agreed, as set out in the order of the Court, as follows: IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the agreement reached between the parties that all claims which the employee might have, now or in the future, under the Worker's Compensation law, for temporary and permanent disability, medical expenses, including future medical expenses, or any other benefit whatsoever under the Worker's Compensation Law of Tennessee, resulting from or connected with any injury or injuries arising from an accident which occurred on or about [January 24, 1997] or at any time while employed by the employer, be compromised, settled and satisfied by the payment of $81, to the employee, including $2,48.4 which has previously been paid for permanent partial disability, and the agreement of the insurer to be contingently liable for future medical expenses with the agreement that payments of authorized and approved medical expenses are to be made as set forth in Tennessee Code Annotated _ 5-6-24 to Dr. William R. Schooley, or to whomever else he may refer her, for treatment related to the employee's alleged on the job injury and the same is hereby in all respects ratified, confirmed and approved. . . . Subsequent to the above referenced settlement, Employee received further medical treatment for her injuries arising out of her injuries of January 24, 1997, the basis of the above settlement agreement. Due to pain from her injuries, a morphine pump was placed to help her low back pain. This procedure resulted in an allergic reaction to the morphine pump. She became ill and this caused her to have a severe cough and to vomit, resulting in a ruptured disc in her upper back at the C-6 level of the spine. Employee required surgery and other treatment for this injury. ANALYSIS The trial court granted Employer's Motion for Summary Judgment. Therefore, appellate review is controlled by Tennessee Rule of Civil Procedure 56. The pleadings and evidence must be viewed in the light most favorable to the party opposing the motion. Summary Judgment is to be rendered only when it is shown that there is no genuine issue to a material fact and that the moving party is entitled to a judgment as a matter of law. Tenn. R. Civ. P. 56; Hilliard v. Tennessee State Home Health Serv., Inc., 95 S.W.2d 344, 345 (Tenn. Workers' Comp. Panel 1997); Byrd v. Hall, 847 S.W.2d 28 (Tenn. 1993). Rarely are such motions an option in workers' compensation cases. Berry v. Consolidated Systems, Inc., 84 S.W.2d 445 (Tenn. 1991). Summary judgment should be granted -2-

Eva D. Brown v. Purodenso Company
W2003-01181-WC-R3-CV
Authoring Judge: James L. Weatherford, Sr.J.
Trial Court Judge: C Donald H. Allen, Judge
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 employee tripped and fell on both knees while at work. The trial court dismissed the complaint after finding that the employee failed to prove by a preponderance of the evidence the injuries to both knees resulted in any permanent physical impairment or that her physical condition was caused or aggravated by her fall at work. The employee contends that the trial court erred in finding: 1) that her injuries were not caused by her work injury; 2) that she did not suffer permanent disability; and 3) that the employer complied with workers' compensation law since the employer failed to pay for necessary surgery and for her permanent disability. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed JAMES L. WEATHERFORD, SR.J., in which JANICE M. HOLDER, J., and JOE H. WALKER, III, SP.J., joined. Ruby R. Wharton and Cynthia A. Pensoneau, Memphis, Tennessee, for the appellant, Eva D. Brown. John D. Burleson and John D. Stevens, Jackson, Tennessee, for the appellee, Purodenso Company. MEMORANDUM OPINION Ms. Eva Brown was 45 years old at the time of trial. She has worked in factories since graduating from high school in 1975. She is divorced and the mother of 2 children over the age of 18. In October of 1996 she began working for Purodenso Company, a manufacturer of automobile air filters. Ms. Brown worked as a "panel pleater" operating a machine that folds the paper product used to make air filters. On January 4, 1999, while working at Purodenso, she tripped over a bin and fell onto the bare concrete floor landing on her hands and knees. After being helped up by another employee, she reported her injury. Later that same day she saw Dr. Gilbert Woodall, the company doctor, complaining of pain and swelling in both knees. He prescribed medication and a knee brace for her right knee. She returned to work and finished her shift. The next day she worked a regular shift doing light duty work. When she continued to complain of knee pain, Dr. Woodall referred her to Dr. Michael Cobb, board certified orthopedic surgeon. On February 3, 1999, Dr. Cobb diagnosed Ms. Brown as having a bruised right knee. He noted that Mrs. Brown reported diffuse tenderness during his exam: "She is tender everywhere." He found no effusion or swelling and no "localized tenderness to the joint lines that would indicate a cartilage problem." He prescribed exercises and released her. On February 24, 1999, Ms. Brown returned to Dr. Cobb complaining of right knee pain. He found "fine crepitance... [a] roughness feeling in her kneecap joint, but that was also present in her left knee." In his opinion, this common condition "had been there before" because it was present in both knees and was not caused by trauma or injury. He diagnosed a bruised knee with kneecap pain and gave her a cortisone injection. On March 1, 1999, Ms. Brown saw Dr. James T. Craig, Jr., board certified orthopedic surgeon, upon referral of her personal physician. She reported pain and grinding in both knees but the most pain in her right knee. He noted that "she did not have any swelling or any fluid in either one of her knees." He found that she did have "crepitation or grinding under the kneecaps on both knees when she flexed or extended her knees." He diagnosed early degenerative arthritis in both knees and chondromalacia of the patellae, a wearing of the cartilage behind the kneecap. He gave her a cortisone injection and recommended anti-inflammatories. On March 18, 1999, she returned to Dr. Cobb's office complaining of "diffuse ill-defined" right knee pain. Dr. Cobb found: "[N]o sign whatsoever of any fluid on the knee. She again was tender wherever I touched, not more so at the joint lines or other important landmarks. She had full range of motion. All ligaments again were stable. I again noted the kneecap crepitance." He reported: "I cannot correlate any of her subjective complaints of pain with any physical findings." He testified: "[W]hen they're tender everywhere [instead of more so at the source of the injury], that affects their credibility to me." Dr. Cobb found no sign of impairment or serious injury and did not assign permanent restrictions. In his opinion, it was possible but unlikely, that chondromalacia could be accelerated by a fall, but in Ms. Brown's case "she had no signs whatsoever that she had an injury in her kneecap area when I saw her on three visits." Ms. Brown then returned to Dr. Craig who found that an MRI did not reveal any cartilage tears, ligament or meniscal injury. Because of her continued complaints of pain, Dr. Craig recommended arthroscopic surgery. On October 12, 2, Dr. Craig performed an arthroscopy and found damage to the cartilage behind the knee cap called chrondromalacia. He performed a chrondoplasty to smooth the area down. He found she reached maximum medical improvement on 2

Ronald Eugene Jones v. Cracker Barrel Old Country
E2002-01681-WC-R3-CV
Authoring Judge: H. David Cate, Sp. J.
Trial Court Judge: James B. Scott, Jr., Judge
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 its findings of fact and conclusions of law. The employer, Cracker Barrel Old Country Store, Inc., argues that the trial court erred by: (1) evaluating the permanent total disability claim of the employee, Ronald Eugene Jones, pursuant to Tenn. Code Ann. _ 5-6-242 instead of Tenn. Code Ann _ 5-6-27(4)(B); (2) finding the employee entitled to permanent total disability benefits when the preponderance of the evidence indicated he could return to "an occupation which would produce an income"; (3) holding the employee's claim was not limited to the multipliers established by Tenn. Code Ann. _ 5-6-241; and (4) entering the order of judgment without a reapportionment clause compelling the second injury fund to reimburse the employer in the event the employee dies before reaching age sixty-five.1, 2, 3 We agree with the employer that a permanent total disability claim should be evaluated on the basis of Tenn. Code Ann. _ 5-6-27(4)(B); the preponderance of the evidence indicates he could return to "an occupation which would produce an income"; and his claim is governed by the Tenn. Code Ann. _ 5-6-241 multipliers. While the last issue concerning a reapportionment clause is pretermitted, we nevertheless disagree with the employer. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court 1 The employer complains about the dismissal of the appeal when the notice of appeal and transcript of the evidence were filed prior to the entry of the final judgment, since Rule 4(d) of the Tenn. R. App. P. permits a prematurely filed notice of appeal to be treated as filed after the entry of judgment and on the day of its entry. The per curiam order of the Supreme Court dismissed the appeal on February 13, 23, not because the transcript had not been timely filed as thought by the employer, but because the final judgment had not been entered. However, the final judgment had been entered in the trial court on February 6, 23. 2 The employee states the issues in a slightly different manner. They will be inherently discussed as we discuss the employee's complaints. 3 The second injury fund takes the same position as the employer except on the reapportionment clause issue. Reversed in Part, Modified in Part and Remanded H. DAVID CATE, SP. J., in which WILLIAM M. BARKER, J., and ROGER E. THAYER, SP. J., joined. James T. Shea IV, Knoxville, Tennessee, attorney for Appellant, Cracker Barrel Old Country Store, Inc. Roger L. Ridenour, Clinton, Tennessee, attorney for Appellee, Ronald Eugene Jones. Paul G. Summers, Attorney General and Reporter, E. Blaine Sprouse and Richard M. Murrell, Assistant Attorney Generals, for Appellee, Sue Ann Head. MEMORANDUM OPINION I. Factual Background Ronald E. Jones, the employee, was forty-six years old when this cause was tried. He left high school in the eleventh grade, has no general equivalency diploma and has no other formal training or education. After he dropped out of school he took care of his grandfather, who had a heart condition. Years later he took a job as a laborer for a construction company. Next, he worked as a night watchman for approximately five years. Then he took a job with Cracker Barrel Old Country Store, Inc., the employer. He worked for the employer for fifteen years, washing dishes, bussing tables and unloading trucks. On December 27, 1992, while in the employ of the employer, the employee sustained a knee injury. He returned to work with restrictions against stooping, bending and squatting. He settled this workers' compensation claim for 15 percent to the body as a whole. On April 23, 1998, the employee, while working for the employer, sustained an injury to his neck, which was diagnosed as a cervical radiculopathy at C7. This workers' compensation claim was settled on January 22, 22, for 19 percent to the body as a whole. He returned to work after the neck injury, but on September 18, 1998, while lifting a case of green beans at work, the employee sustained an injury to his low back. He was treated by Dr. Cletus J. McMahon, Jr., an orthopedic surgeon, who diagnosed the employee's injury as a low back strain, an injury to the soft tissue, the ligaments, muscles and tendons. Dr. McMahon discharged the employee from his care on March 29, 1999, assigning him a 5 percent impairment to the body as a whole. The employee returned to work for the employer with the primary restriction of no lifting over twenty-five pounds. He worked a modified schedule of 18 to 2 hours until he quit because of pain in June, 1999. -2-