Judith A. Johnson, Surviving Widow of David C. Johnson, et al. v. Robert B. Richardson, d/b/a Richardson Landscaping & Trucking M2002-02968-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Allen W. Wallace, 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 of findings of fact and conclusions of law. The defendant/appellant has appealed the action of the trial court, which overruled his motion to set aside a default judgment under the provisions of Tenn. R. Civ. P., Rule 6. The standard of review is whether the trial court abused its discretion in denying the motion to set aside the judgment. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Reversed and Remanded JOHN K. BYERS, SR. J., in which ADOLPHO A. BIRCH and WILLIAM C. KOCH, JJ., joined. Debra A. Wall, Clarksville, Tennessee, attorney for appellant, Robert B. Richardson. Timothy K. Barnes, Clarksville, Tennessee, attorney for appellee, Judith A. Johnson, Kimberly Ann Mahoney and Sean Patrick Mahoney. MEMORANDUM OPINION Facts The plaintiffs brought this compensation suit to recover benefits under the Workers' Compensation Act as a result of an accident on July 22, 1994 in which her husband and the step- father of the two minor children was killed. The suit was filed on September 7, 1994. The defendant subsequently filed a motion for summary judgment. On December 3, 1994 the trial judge overruled the motion for summary judgment. There are no orders in the record before us from the date of the overruling of the summary judgment on December 3, 1994 until the entry of the default judgment which was entered on September 7, 21. The plaintiffs were awarded $167,832.. Subsequent to the order amending the motion for a summary judgment, the defendant filed a petition in the federal court declaring bankruptcy. This stayed the proceedings in the trial court. On August 1, 21, the defendant filed a motion to have a default judgment set aside which he averred was entered on May 25, 21. The motion further avers that on May 1, 21 the trial judge ordered the plaintiff to "place a document in the court file evidencing this matter had been removed from bankruptcy court" and the defendant further avers the plaintiff did not place said document in the file prior to May 25, 21, as directed by the trial judge. On the record before this court is a document designating notice as an order entered in the United States Bankruptcy Court granting relief from a stay of the proceedings in the Bankruptcy Court. This document recites that the relief from the automatic stay of this case was granted on October 2, 1998. Marked on the order was the notation "Received for Entry,"nunc pro tunc to 1/2/98." This appears to be placed there by the Bankruptcy Court. The order also shows a stamp which is "21 August 23 a.m. 9:32." This also appears to be an entry by the Bankruptcy Court. There is nothing in the record to show when this order was placed in the record in this case. There are no orders in the record memorializing any proceedings being held in the trial court on either May 1, 21 or May 25, 21. On September 7, 21 the trial judge entered a default judgment against the defendant in favor of the plaintiffs. The order recited that defendant was not present despite being duly notified of said court date. The order, approved by plaintiff's attorney for entry has a certification of service thereof on defendant's attorney which is undated. On September 19, 22, the plaintiff filed a "supplemental response to the motion to set aside the default judgment." (There is not another response to the motion to set aside the default judgment in the record.) On October 1, 21, the defendant filed another motion to have the default judgment set aside. This motions was accompanied by an affidavit from the defendant. Also on October 1, 21, the defendant filed a motion seeking to have the operation and effect of the default judgment suspended. On October 25, 22, the trial court entered an order denying the defendant's motion to set -2-
Johnson
Workers Compensation Panel
State of Tennessee v. Jared Singleton M2002-02392-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Charles D. Haston, Sr.
The defendant, Jared Singleton, entered pleas of guilt to forgery, a Class E felony, and criminal impersonation, a Class B misdemeanor. After denying the defendant's request for judicial diversion under Tennessee Code Annotated section 40-35-313, the trial court imposed concurrent sentences of two years for the forgery and six months for the criminal impersonation. Probation was to be granted after service of 30 days in the county workhouse. In this appeal of right, the defendant contends that the trial court abused its discretion by denying judicial diversion. The judgment of the trial court is reversed and the defendant is granted judicial diversion. The cause is remanded to the trial court for the imposition of conditions of the probationary term.
The Petitioner, Roger T. Johnson, appeals the trial court's denial of his petition for habeas corpus relief. 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. The Petitioner fails to assert a cognizable claim for which habeas corpus relief may be granted. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.
A Montgomery County Circuit Court jury convicted the defendant, James Lee Foreman, II, of two counts of rape, a Class B felony. The trial court merged the convictions and sentenced the defendant as a violent offender to ten years in confinement. The defendant appeals, claiming that his sentence is excessive. Having determined that we lack jurisdiction in the case, the defendant's appeal is dismissed.
The petitioner, Tony G. Smith, appeals as of right from the order of the Davidson County Criminal Court holding that his petition for post-conviction relief was barred by the statute of limitations and dismissing the petition without appointing counsel or holding an evidentiary hearing. The petitioner is seeking relief from his convictions for attempted first degree murder and stalking and his effective twenty-nine-year sentence. The petitioner contends that the trial court erred in its finding that the petitioner did not allege any circumstances that would qualify as an exception to the one-year statute of limitations for filing post-conviction relief. We affirm the trial court's dismissal of the petition
The Defendant, Troy D. Billingsley, pled guilty to Driving After Being Declared an Habitual Motor Vehicle Offender, Felony Driving Under the Influence of an Intoxicant ("DUI") and Failure to Appear in the Circuit Court for Moore County. After a sentencing hearing, the trial court imposed an aggregate sentence of fifteen years in prison. On appeal, the Defendant contends that his sentence was excessive and contrary to law. Finding no reversible error, we affirm the trial court's judgments.
This is an appeal of a final decree of divorce primarily as it concerns custody of the parties’ children. The trial court awarded custody to mother and provided for a supervised visitation to father. Father appeals and, in addition to the custody issue, also presents issues pertaining to the trial court’s out-of-court interview with the children and the mental examination of the parties. We affirm.
The Appellant, Carlos Williams, appeals the summary dismissal of his pro se petition for post-conviction relief. On appeal, Williams acknowledges that the instant petition was not timely filed; however, he alleges that a prior petition was timely delivered to the appropriate prison official for filing but apparently never received by the Shelby County Criminal Court Clerk. For this reason, we find it necessary to vacate the post-conviction court's ruling and remand for a determination of whether Williams’ prior petition was timely filed.
Shelby
Court of Criminal Appeals
Albert Thompson v. Patricia Chafetz W2003-00518-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge George H. Brown
This is an appeal from an Order denying Appellant’s Tenn. R. Civ. P. 60 Motion, which sought relief from the grant of Appellee’s Motion for Summary Judgment. Appellant’s attorney failed to set the Motion for hearing until some nineteen (19) months after the entry of the Order granting summary judgment. The trial court found that the attorney’s failure to prosecute resulted in prejudice to Appellee and denied the Rule 60 Motion. We affirm.
Whether properly assigned or not this court may consider plain error upon the record under Rule 52(b) of the Tennessee Rules of Criminal Procedure. State v. Ogle, 666 S.W.2d 58 (Tenn. 1984). Before an error may be so recognized, it must be “plain” and must affect a “substantial right” of the accused. The word “plain” is synonymous with “clear” or equivalently “obvious.” United States v. Olano, 507 U.S. 725, 732 (1993). Plain error is not merely error that is conspicuous, but especially egregious error that strikes at the fairness, integrity, or public reputation of judicial proceedings. See State v. Wooden, 658 S.W.2d 553, 559 (Tenn. Crim. App. 1983). In State v. Adkisson, 899 S.W.2d 626, 639 (Tenn. Crim. App. 1994), this court defined “substantial right” as a right of “fundamental proportions in the indictment process, a right to the proof of every element of the offense and . . . constitutional in nature.” In that case, this court established five factors to be applied in determining whether an error is plain:
(a) The record must clearly establish what occurred in the trial court; (b) a clear and unequivocal rule of law must have been breached; (c) a substantial right of the accused must have been adversely affected; (d) the accused [must not have waived] the issue for tactical reasons; and (e) consideration of the error must be "necessary to do substantial justice."
Id. at 641-42. Our supreme court characterized the Adkisson test as a “clear and meaningful standard” and emphasized that each of the five factors must be present before an error qualifies as plain error. State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000).
The defendant, Douglas Marshall Mathis, was convicted of first degree murder and sentenced to life imprisonment. In this appeal, he contends: (1) that the evidence is insufficient; (2) that the trial court erred by giving an irrelevant definition of "knowing" as a part of the instructions to the jury; (3) that the prosecutor's comments during closing argument were improper; (4) that he was denied the right to a fair and impartial jury; and (5) that the trial court erred by admitting certain evidence. The judgment of the trial court is affirmed.
The defendant was convicted of third offense driving under the influence (DUI) and driving on a revoked license. He contends on appeal that (1) the evidence was insufficient to support the convictions, (2) the trial court erred in denying his motion to suppress because the deputy did not have reasonable suspicion to initiate the stop, and (3) the deputy's mention of the horizontal gaze nystagmus (HGN) test during his testimony entitled the defendant to a mistrial. Concluding that no reversible error occurred, we affirm the judgments of the trial court.
Following a judicial diversion revocation hearing, the trial court sentenced Defendant to six years in the Tennessee Department of Correction in accordance with the terms of his plea agreement which had been negotiated at the time Defendant pled guilty to one count of aggravated assault. The trial court sentenced Defendant without conducting a sentencing hearing. Defendant now appeals his sentence of confinement arguing that the terms of his plea agreement called for a probated sentence in the event his judicial diversion was subsequently revoked. Alternatively, Defendant argues that the terms of his plea agreement did not survive the revocation of his judicial diversion, and the trial court should have conducted a sentencing hearing prior to imposing Defendant's sentence. Defendant also argues that the trial court erred in requiring him to report to his probation officer as a condition of bond pending appeal. Following a thorough review of the record in this matter, we affirm the judgment of the trial court.
Petitioner, Nelson Keith Foster, appeals from the trial court's dismissal of his petition for post-conviction relief, without affording Petitioner an evidentiary hearing. In his petition, Petitioner asserted that he was entitled to relief from his three convictions for violation of the Habitual Motor Vehicle Offender Act (HMVO) due to ineffective assistance of counsel. The trial court dismissed the petition because Petitioner had argued in his direct appeal from the convictions that he was entitled to relief because he had received ineffective assistance of counsel. We affirm the judgment of the post-conviction trial court.
Wife filed for divorce alleging Husband was guilty of inappropriate marital conduct. Trial court granted Wife an absolute divorce, ordered a martial property distribution, and awarded wife alimony and attorney’s fees. Husband appeals. We affirm the distribution of marital property, modify the award of attorney’s fees, vacate the requirement to provide life insurance and remand.
Madison
Court of Appeals
State of Tennessee v. Latasha Akins W2003-01178-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge R. Lee Moore Jr.
The Defendant, Latasha Atkins, appeals her jury conviction for possession of cocaine with intent to sell, contending the evidence is insufficient to support her conviction. We disagree and affirm the judgment of the trial court.
Dyer
Court of Criminal Appeals
June Betty Williams v. Saturn Corporation M2002-02916-WC-R3-CV
Authoring Judge: James L. Weatherford, Sr.J.
Trial Court Judge: Stella L. Hargrove, Chancellor
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 to the Supreme Court of findings of fact and conclusions of law. The employer appeals the judgment of the trial court awarding the employee 2% permanent partial disability to the body as a whole for work-related injuries to both shoulders, and denying a set-off for disability payments paid under an employer-funded plan. The employer contends that the trial court erred: 1) in basing the employee's award on an anatomical impairment rating not based entirely on the AMA Guides; and 2) in not granting a set-off for disability payments paid by the employer pursuant to Tenn. Code Ann. _ 5-6- 114(b). We hold that the evidence does not preponderate against the trial court's findings as to anatomical and vocational disability. Accordingly, the judgment of the trial court is affirmed as to this issue. We find that this case should be remanded for further proceedings on the issue of whether a set-off is warranted in this case. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed in Part; and Remanded JAMES L. WEATHERFORD, SR.J., in which JANICE M. HOLDER, J., and JOE C. LOSER, JR.,SP.J., joined. Thomas H. Peebles, IV, Columbia, Tennessee, for the appellant Saturn Corporation. Michael D. Dillon, Nashville, Tennessee, for the appellee June Betty Williams. MEMORANDUM OPINION Ms. June Williams was 44 years old at the time of trial. She has a 12th grade education and completed a medical assistant course. She began working for General Motors in 1977 and worked as a punch press operator or assembly line worker for 1 to 11 years there. During layoffs from GM, she worked in fast food restaurants and worked one year as a medical office assistant. In 1991, Ms. Williams moved to Tennessee to work for Saturn Corporation. She worked on the assembly line using torque guns and doing other repetitive work with her arms above shoulder level. She gradually developed aching and soreness in her shoulders and shoulder blade area. After being treated for several years at the clinic at Saturn, she was eventually referred to Dr. Jeffery Adams, orthopedic surgeon, for treatment. When conservative treatment did not resolve her symptoms, she had surgery on her right shoulder for tendinitis of the biceps tendon on February 23, 1999. She had 2 surgeries on her left shoulder _ one for a labrum tear on June 22, 1999, and an arthroscopic synovectomy on January 19, 2. Her last day of work prior to surgery was February 8, 1999. On September 19, 2,1 Dr. David Gaw, M.D., evaluated Ms. Williams and found that her injuries were caused by her work activities. He assigned permanent restrictions which included avoiding frequent or continuous overhead or outstretched use of the hands for pushing, pulling or lifting. Dr. Gaw assigned a 4% anatomical impairment to the body as a whole for each shoulder, for a combined 8% anatomical impairment rating. He based this rating on minimal loss of motion and change in anatomy due to the 3 surgical procedures.2 Dr. Gaw acknowledged that the AMA Guides do not specifically cover the surgical procedures undergone by Ms. Williams: Well, this is one of those conditions which is not specifically covered by the Guides. There's nothing in there that says debridement of the labrum or cutting the biceps tendon and moving it around, but it's _ I think it has to do with just experience or understanding the physiology or explaining this lady's loss of function. I think that's, in my opinion, a minimal impairment, but certainly there has been some change in this person's anatomy of the shoulder. On January 8, 21, Ms. Williams returned to work at Saturn test-driving cars, a job that is within her medical restrictions, but she has concerns about low job seniority in this position. The surgical procedures significantly reduced her pain, but she "still has some trouble" when she uses her arms in an overhead position. She can not lift either arm for very long and still has pain when doing certain activities. She now has difficulty in holding the phone with her right arm, putting on clothes, and getting in or out of a bathtub. Ms. Williams is now limited in such activities as painting her house, gardening and bowling. Two vocational experts testified at trial. Ms. Patsy Bramlett assigned a 1% vocational 1He testified at his deposition that she reached maximum medical improvement on this date. 2Dr. Gaw assigned 2% to the right upper extremity and 1% to the left upper extremity for loss of motion based on pp. 43-45 of the AM A Guides. He assigned 5% impairment to each upper extremity for the surgical procedures. -2-
Maury
Workers Compensation Panel
Deborah Johnson v. Marshall Manufacturing Corp., M2003-00921-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr, Sp. J.
Trial Court Judge: J. B. Cox, Chancellor
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 appellant, Federated Insurance Company, insists the trial court erred in determining, as a matter of law, that it was liable for the payment of workers' compensation benefits and in summarily dismissing the case as to Liberty Mutual Insurance Company. As discussed below, the panel has found no reversible error and concluded that Federated is liable under the successive injury rule. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR, SP. J., in which JANICE M. HOLDER, J., and JAMES L. WEATHERFORD, SR. J., joined. Gordon C. Aulgur, Brewer, Krause & Brooks, Nashville, Tennessee, for the appellant, Federated Insurance Company Lee Anne Murray, Feeney & Murray, Nashville, Tennessee, for the appellee, Marshall Manufacturing Corporation Emil L. Storey, Jr. and Deborah A. Toon, Donald D. Zuccarello, Nashville, Tennessee, for the appellee, Deborah Johnson MEMORANDUM OPINION The employee or claimant, Deborah Johnson, has worked for the employer, Marshall Manufacturing Corporation, since 1979. She gradually developed pain and numbness in both hands and was diagnosed with mild carpal tunnel syndrome. The employer's insurer, Liberty Mutual, accepted the claim and provided medical benefits. The claimant continued working. On April 16, 2, Federated Insurance succeeded Liberty Mutual as the employer's workers' compensation insurance carrier. On August 21, 2, the claimant underwent corrective surgery for her carpal tunnel syndrome and was disabled from working. Liberty Mutual paid for the surgery but has refused to pay medical or disability benefits after that date. So has Federated. Ms. Johnson sued both carriers and the employer for the benefits provided by law. On Liberty Mutual's motion for summary judgment, the trial court dismissed the claim against Liberty Mutual and awarded Liberty Mutual a judgment against Federated for expenditures made by Liberty Mutual on behalf of the claimant. The trial court further concluded from the undisputed facts that Federated was liable to the claimant for benefits. Federated has appealed. 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). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court which had the opportunity to observe the witnesses' demeanor and to hear the in- court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 178 (Tenn. 1999). The appellate tribunal, however, is as well situated to gauge the weight, worth and significance of deposition testimony as the trial judge. Walker v. Saturn Corp., 986 S.W.2d 24, 27 (Tenn. 1998). Conclusions of law are subject to de novo review on appeal without any presumption of correctness. Nutt v. Champion Intern. Corp., 98 S.W.2d 365, 367 (Tenn. 1998). Where an employee is permanently disabled as a result of a combination of two or more accidents occurring at different times and while the employee was working for different employers, the employer for whom the employee was working at the time of the most recent accident is generally liable for permanent disability benefits. Baxter v. Smith, 211 Tenn. 347, 364 S.W.2d 936 (1962). The same doctrine applies where the employee's permanent disability results from successive injuries while the employee is working for the same employer, but the employer has changed insurance carriers. Bennett v. Howard Johnson's Motor Lodge, 714 S.W.2d 273 (Tenn. 1986). The carrier which provided coverage at the time of the last injury is liable for the payment of permanent disability benefits. Where a condition develops gradually over a period of time resulting in a definite, work-connected, unexpected, fortuitous injury, it is compensable as an injury by accident. Brown Shoe Co. v. Reed, 29 Tenn. 16, 35 S.W.2d 65 (1961). In such cases, the date of injury has been fixed as of the date on which the claimant was forced to quit work because of severe pain. Lawson v. Lear Seating Corp., 944 S.W.2d 34 (Tenn. 1997); Barker v. Home-Crest Corp., 85 S.W.2d 373, 374 (Tenn. 1991); Central Motor Exp. v. Burney, 214 Tenn. 118, 377 S.W.2d 947 (1964). In Barker, where the claimant also suffered a gradually occurring injury, this court held the insurer which provided coverage on the day the employee last worked was liable for -2-
I join with the majority in concurring that the Defendant is not entitled to the alternative sentence of Community Corrections. The Defendant is a Range II multiple offender, possessing a criminal history evincing a clear disregard for the law and whose past efforts at rehabilitation have failed. Thus, in the absence of evidence to the contrary, he is not entitled to the presumption in favor of alternative sentencing. Tenn. Code Ann. § 40-35-102(6). For this reason, I would affirm.
The Defendant, Roger V. Alexander, pled guilty to one count of possession of anhydrous ammonia, a Class E felony. The trial court sentenced the Defendant to four years in the Department of Correction. The Defendant now appeals, alleging that the trial court should have sentenced him to Community Corrections. We affirm the judgment of the trial court.
This case arises out of a breach of contract by the Defendant for a roof Defendant installed on Plaintiff's freezer storage facility. The case was tried before a jury, who found the Defendant had materially breached the contract between the parties and awarded Plaintiff damages in the amount of $5,655.00. Subsequently, Plaintiff filed a motion to alter or amend the judgment or, in the alternative, a motion for additur or new trial. The trial court denied the motion to alter or amend the judgment but suggested an additur increasing the award to $30,655.00, which Defendant appealed. For the following reasons, we affirm the decision of the trial court.
The petitioner appeals the dismissal of his petition for post-conviction relief from his second degree murder conviction, arguing that the post-conviction court erred in finding that he received the effective assistance of trial counsel. Based on our review of the record, we conclude the petitioner failed to meet his burden of demonstrating by clear and convincing evidence that he was denied the effective assistance of counsel. Accordingly, we affirm the post-conviction court's dismissal of the petition.
Davidson
Court of Criminal Appeals
Darcus Williams v. Metropolitan Government of M2002-03038-WC-R3-CV
Authoring Judge: James L. Weatherford, Sr. J.
Trial Court Judge: Walter C. Kurtz, Judge
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 to the Supreme Court of findings of fact and conclusions of law. The employer appeals the trial court's judgment that the employee suffered an injury arising out of and in the course and scope of her employment when the employee left her work station to go to a break area on the employer's premises to hand some money to her friend to repair her car and slipped in a puddle of water and injured her back as she was about to re-enter the building. The employee contends that the trial court erred in finding the employee suffered only a 2% anatomical impairment and a 4% vocational disability for this injury. The panel has concluded that the judgment of the trial court should be affirmed. 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 C. LOSER, SP.J., joined. Aundreas Wattley-Smith, Nashville, Tennessee, for the appellant Metropolitan Government of Nashville and Davidson County, Tennessee Acting By and Through The Electric Power Board Through Said Government a/k/a Nashville Electric Service. Jerry D. Mayo, Nashville, Tennessee, for the appellee Darcus Williams. MEMORANDUM OPINION Ms. Darcus Williams was 42 years old at the time of trial. She is a single mother with two children ages 25 and 11. She graduated from high school and has taken college courses. She had worked as a file clerk for a bank and a university before she began working for Nashville Electric Service ("NES") in July 1987 as a clerk typist. She had also worked for 5 years at the Hyatt Regency as a reservations agent and catering coordinator. Ms. Williams also worked a second part-time job during holidays and other times during her employment with NES. The main NES building has a back entrance with a concrete porch and a chain link fence beside it. There is a picnic table in this area and employees take breaks there and use this area to smoke. It is also a poplar area for employees to be dropped off and picked up from work. Employees use this entrance to go to other buildings on the NES property. According to Ms. Williams, it is common practice for employees to stand on the porch and receive items such as lunch, papers, money or clothes from friends or family members who are on the outside of the fence. NES security guards or supervisors had never told her that this activity was prohibited. Mr. Robert Mansolino, NES employee safety and health manager, testified: "I think it's pretty common for employees to go out that back door to carry on business or go to their personal vehicle or whatever." He was not aware of any NES rule prohibiting employee use of this area. On December 28, 2, Ms. Williams had problems with her car and had a friend drop her off at work. During work hours she needed to give some money to her friend to get her car repaired. She arranged to meet him at the chain link fence near the back door of the main NES building so she could hand him the money. At about 1:3 a.m. she left her workstation and went down to deliver the money. After giving the cash to her friend at the fence, she turned and reached for the door to the building when she slipped in a puddle of a slimy, watery substance and fell. Her friend called the security guard and she reported to the nurses' station complaining of low back pain that radiated to her left leg. A January 4, 21, MRI indicated a lumbar disc protrusion. After conservative treatment failed, Dr. Thomas O'Brien, an orthopedic surgeon, performed a 2-level laminectomy and fusion. Her pain and radicular symptoms did not resolve and a second MRI showed scar and granulated tissue surrounding the nerve root. Dr. O'Brien found that she had sustained a 13% anatomical impairment rating.1 He stated that he expected her to "have some ongoing permanent discomfort in her leg as a result of scarring and intrinsic nerve damage present pre-operatively." He imposed permanent restrictions of "no lifting greater that 25 pounds and limited bending and stooping." He felt she could return to her job as a clerk typist. Dr. David Gaw, an orthopedic specialist, performed an independent medical evaluation and assigned a 22% anatomical impairment rating to the body as a whole based on the AMA Guides 5th Edition. He disagreed with Dr. O'Brien's 13% rating because Dr. O'Brien did not utilize the range 1Dr. O'Brien acknowledged that he did not follow the AMA Guides' range of motion protocols because he felt it would not give a valid impairment rating due to M s. W illiams' inconsistent results on her functional capacity evaluation. -2-
The Petitioner, James K. Robbins, appeals the trial court's dismissal of his petition for writ of habeas corpus. 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. The petitioner has not established that the challenged judgment is void or that his sentence has expired. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.
The petitioner, Conley R. Fair, filed for post-conviction relief, alleging the ineffective assistance of counsel. The post-conviction court summarily dismissed the petition without an evidentiary hearing and without the appointment of counsel, finding that the petition was not timely filed. Upon review of the record and the parties' briefs, we reverse the judgment of the post-conviction court and remand for the appointment of counsel and an evidentiary hearing.
