Johnny Marvin Henning, pro se v. State of Tennessee
W2003-01975-CCA-R3-HC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge R. Lee Moore Jr.

This matter is before the Court upon the State’s motion to affirm the judgment of the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner, Johnny Marvin Henning, appeals the trial court's denial of his petition for habeas corpus relief. Finding that the Petitioner has failed to assert a ground entitling him to habeas corpus relief, this Court affirms the judgment of the trial court dismissing the petition.

Robert Zandi, pro se, v. State of Tennessee
W2003-01314-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge C. Creed McGinley

The Petitioner, Robert Zandi, appeals the trial court's denial of his petition for post-conviction 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. Concluding that the petition is barred by the one-year statute of limitations, the State's motion is granted and the denial of relief entered by the trial court is affirmed.

State of Tennessee v. Terrance Lewis
W2003-00356-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Roy B. Morgan, Jr.

The defendant was convicted by a Henderson County Circuit Court jury in consolidated cases of aggravated robbery, a Class B felony, and especially aggravated robbery, a Class A felony. He was sentenced by the trial court as a Range I, standard offender to eight years for the aggravated robbery conviction, and as a violent offender to twenty years for the especially aggravated robbery conviction, with the sentences ordered to be served concurrently, for an effective sentence of twenty years in the Department of Correction. He raises essentially one issue on appeal: whether the trial court erred in denying his pretrial motion to suppress his statement to police. Following our review, we affirm the judgments of the trial court.

State of Tennessee v. Ray Saulsberry
W2002-01484-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Joseph B. Dailey

The defendant was convicted of robbery and driving while a habitual motor vehicle offender. The defendant contends on appeal that the trial court erred in 1) denying his constitutional right to the assistance of counsel, and 2) conducting the trial in absentia while the defendant was not represented by counsel. We conclude that once elbow counsel has been appointed, and the defendant is absent voluntarily or through removal because of behavior, the trial court should require elbow counsel to represent the absent defendant. Under the facts of this case, the trial court erred in not requiring elbow counsel to proceed to represent the defendant when he was removed from the courtroom. Accordingly, the judgments of conviction are reversed and remanded for a new trial.

Wellmont Health System v. Tennessee Health Facilities Commission
M2002-03074-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Chancellor Carol L. McCoy

Administrative Law Judge vacated Certificate of Need, which had been granted by Tennessee Health Facilities Commission, on grounds of conflict of interest of a Commission member and erroneous information set forth in application for Certificate of Need. Chancery Court affirmed. We affirm, holding that the vote of a Commission member with a conflict of interest is void ab initio. Commission member with conflict of interest had an affirmative duty pursuant to Rules of Tennessee Health Facilities Commission 0720-1-.02(1) to not only disclose the conflict but to recuse himself. Adverse party's failure to raise the conflict was not a waiver for there can be no waiver of the public's interest in having all votes of the Commission take place without members who have a conflict.

Laboratory Corporation of America v. Lacy and Associates, D/B/A Occupational Medicine Works
M2002-01837-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Ellen Hobbs Lyle

This dispute arose out of a breach of contract claim in which Plaintiff asserted Defendant owed upwards of $20,000.00 for goods and services provided from March 1996 through August 1997. Defendant raised affirmative defenses and filed a counterclaim for fraud, alleging that Plaintiff intentionally submitted false billings. Plaintiff moved for summary judgment. The Chancery Court granted Plaintiff’s motion for summary judgment on the complaint and dismissed Defendant’s counterclaim for fraud. Defendant appealed. We affirm the judgment of the trial court.

Kenneth Sutton and wife, Juanita Sutton v. Lisa Baysden
E2003-00459-COA-R3-CV
Authoring Judge: Judge Herschel P. Franks
Trial Court Judge: Chancellor Frank V. Williams, III

In an action to enforce right to easement, the Trial Court enjoined defendant to remove gate across easement and otherwise not interfere with plaintiffs' use. On appeal, we affirm.

Eugene Turner v. State of Tennessee
W2003-00824-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Jon Kerry Blackwood

A McNairy County jury convicted the Petitioner, Eugene Turner, of two counts of premeditated first degree murder and the trial court sentenced the Petitioner to two concurrent life sentences with the possibility of parole. On direct appeal, this Court affirmed the conviction, and the Tennessee Supreme Court denied the Petitioner’s application for permission to appeal. The Petitioner then sought post-conviction relief in the trial court, alleging that he was denied effective assistance of counsel. Following a hearing, the post-conviction court dismissed the petition. Finding no error, we affirm the post-conviction court’s judgment.

State of Tennessee v. James A. Johnson
W2002-02448-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge C. Creed McGinley

The defendant appeals his convictions and sentences on two counts of aggravated sexual battery. The defendant was sentenced to two twelve-year terms, to be served consecutively for an effective sentence of twenty-four years. The defendant asserts three issues for review: (1) insufficiency of the evidence to support the convictions; (2) error in the use of enhancement factors in determining the length of the sentences imposed; and (3) error in ordering the sentences served consecutively.

Ashad R.A. Muhammad Ali v. State of Tennessee
M2002-02986-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge W. Charles Lee

The Appellant, Ashad R. A. Muhammad Ali, appeals the Lincoln County Circuit Court's summary dismissal of his petition requesting DNA analysis under the Post-Conviction DNA Analysis Act. On appeal, the Appellant raises two issues for our review: (1) whether the trial court properly dismissed the petition and (2) whether the trial judge erred by not sua sponte recusing himself based upon the fact that the trial judge was "part of the prosecutorial team that prosecuted the original conviction against the Appellant." Due to the sparseness of the record with regard to the question of recusal, we remand the case for a determination of this issue.

Donald Walton v. State of Tennessee
M2002-02044-CCA-R3-CO
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Robert L. Jones

Petitioner, Donald Walton, appeals from the trial court's summary dismissal of his petition for writ of habeas corpus. After a review of the record and the briefs, we affirm the judgment of the trial court.

Edward Pinchon v. State of Tennessee
M2003-00816-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The petitioner appeals the dismissal of his petition for post-conviction relief as time-barred, arguing that the post-conviction court erred for failing to find that the one-year statute of limitations was tolled due to his mental incompetence, or, in the alternative, for failing to find that his petition was timely because it was filed within one year from the date mandate issued. Following our review, we affirm the dismissal of the petition.

State of Tennessee v. Floyd Perrow
M2003-00319-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Michael R. Jones

A Montgomery County jury convicted the Defendant, Floyd Perrow, of aggravated burglary, two counts of aggravated rape, and aggravated assault. The trial court merged the two convictions of aggravated rape and sentenced the Defendant to an aggregate thirty-six and a half years in prison. On appeal, the Defendant contends that: (1) insufficient evidence exists in the record to support his convictions; and (2) the trial court imposed an excessive sentence because it should have merged all of the Defendant’s convictions into a single conviction. The State also appeals, contending that the trial court erred by merging the two aggravated rape convictions. After thoroughly reviewing the record, we conclude that sufficient evidence exists to support the Defendant’s convictions and that the trial court did not err by failing to merge all of the convictions into a single conviction. However, we conclude that the trial court erred by merging the two aggravated rape convictions. Accordingly, we reverse this judgment by the trial court, and we reinstate the two aggravated rape convictions. We remand the case to the trial court for re-sentencing on those two convictions.

Anton McDonald v. State of Tennessee
M2003-00947-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge James K. Clayton, Jr.

The petitioner, Anton McDonald, appeals the dismissal of his petition for post-conviction relief from a guilty plea to possession of over .5 grams of cocaine with the intent to sell or deliver, arguing that the post-conviction court erred in finding that the petition was time-barred. Following our review, we affirm the dismissal of the petition.

Roger L. Hickman v. State of Tennessee
E2003-00567-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Ray L. Jenkins

The Defendant, Roger L. Hickman, appeals from the trial court's dismissal of his petition for post-conviction relief, in which he alleged that, in 1986, he entered a guilty plea to a misdemeanor without the assistance of counsel and without waiving his right to counsel. We affirm the dismissal of the Defendant's post-conviction petition because it was time-barred. Furthermore, we conclude that the Defendant is not entitled to habeas corpus relief. We affirm the judgment of the trial court.

State of Tennessee v. Larry K. Bombailey
E2003-00421-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge R. Jerry Beck

The defendant, Larry K. Bombailey, pled guilty in the Sullivan County Criminal Court to violating a motor vehicle habitual offender order, a Class E felony; theft of property valued at $500 or less, a Class A misdemeanor; and public intoxication, a Class C misdemeanor. The defendant agreed to a sentence as a Range I offender of eleven months, twenty-nine days for the theft; thirty days for the public intoxication, to be served concurrently to the theft; and eighteen months for violating a motor vehicle habitual offender order, to be served consecutively to the theft. The parties stipulated that the trial court would determine the manner of service for the defendant's conviction for violating a motor vehicle habitual offender order. After a sentencing hearing, the trial court denied the defendant's request for an alternative sentence for the motor vehicle habitual offender violation. The defendant appeals, claiming that the trial court erred by denying him an alternative sentence. We affirm the trial court's denial of an alternative sentence but remand the case for entry of a corrected judgment for the theft conviction.

Lisa D. Huckabee v. Michael E. Magill, Commissioner if the Tennessee Department of Labor and Workforce Development, et al.
E2003-01419-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Chancellor W. Frank Brown, III

This appeal involves a claim for unemployment compensation benefits by Lisa Huckabee ("Claimant"). When Claimant was hired by Watkins & Son, Inc. (the "Employer"), the Employer's policy prohibiting fraternization between employees was explained to her. Nevertheless, Claimant began a consensual affair with a coworker. The coworker's employment was terminated when the Employer learned of the affair. It is disputed as to whether Claimant was discharged or quit before she could be discharged. The Board of Review concluded that Claimant was disqualified from receiving benefits regardless of whether she quit or was discharged. The Trial Court reversed after concluding, inter alia, that the issue of whether Claimant was discharged for work related misconduct was not an issue the Board of Review could properly consider because the Employer did not raise that issue at the previous two administrative levels. The Trial Court also concluded that the decision by the Board of Review was not supported by substantial and material evidence. We reverse the judgment of the Trial Court and reinstate the judgment of the Board of Review.

State of Tennessee v. Michael D. Martin
E2002-03005-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge R. Jerry Beck

The defendant, Michael D. Martin, pled guilty in the Sullivan County Criminal Court to violating a motor vehicle habitual offender order, a Class E felony. After a sentencing hearing, the trial court sentenced the defendant as a Range II, multiple offender to four years in the Department of Correction (DOC) and ruled that despite the general prohibition on probation contained in T.C.A. § 55-10-616(c) of the Motor Vehicle Habitual Offenders (MVHO) Act, trial courts can consider probation for defendants who violate motor vehicle habitual offender orders. Nevertheless, the trial court denied the defendant’s request for probation. The defendant appeals, claiming that his sentence is excessive and that he should have received full probation. We conclude that the defendant’s sentence should be reduced to three years. We conclude that the Criminal Sentencing Reform Act of 1989 repealed by implication the MVHO Act’s prohibition of probation in T.C.A. § 55-10-616(c). However, we also conclude that the trial court erred in denying any form of alternative sentencing, and we remand the case for the entry of an appropriate sentence.

State of Tennessee v. Michael D. Martin - Concurring
E2002-03005-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge R. Jerry Beck

In Lester Johnson v. State, No. E2001-00019-CCA-R3-PC (Tenn. Crim. App., at Knoxville, July 11, 2002), and State v. Jimmy D. Goode, No. E2000-02829-CCA-R3-CD (Tenn. Crim. App., at Knoxville, Nov. 19, 2001), I authored opinions indicating that the finding of an emergency is the only time a trial court might suspend the sentence of an individual convicted of a violation of Tennessee Code Annotated section 55-10-616. Johnson was a post-conviction case in which the petitioner alleged bias on the part of the trial judge. The holding in Goode was that an actual emergency is not only a defense to prosecution under the Motor Vehicle Habitual Offenders Act, but also a factor which could be considered at sentencing in the event of a conviction. In State v. Ricky Fife, No. 03C01-9401-CR-0036 (Tenn. Crim. App., at Knoxville, June 15, 1995), however, a panel of this court had held that the 1989 Act superseded the terms of Tennessee Code Annotated section 55-10-616(c), thereby providing sentencing alternatives absent an emergency. Our research indicates that other panels of this court, relying upon the holding in Fife, have established a conflicting line of authority. After further review, I am persuaded by the majority that the terms of the 1989 Act, so comprehensive in nature, should apply, thereby affording the trial court with more flexibility in the sentencing of habitual motor vehicle offenders. The facts here demonstrate why it is so important for trial judges to have wide discretionary authority in matters of sentencing.

Mickie R. McBee v. J. Lynn Nance
E2003-00136-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Chancellor William E. Lantrip

Mickie R. McBee ("Plaintiff") signed a Promissory Note evidencing an indebtedness to J. Lynn Nance ("Defendant") in the amount of $15,000. The Promissory Note ("Note") was secured by a Deed of Trust on Plaintiff's house. After Plaintiff failed to make any payments on the Note, Defendant foreclosed on the house. Plaintiff then filed this lawsuit challenging the adequacy of the consideration supporting the Note. At trial, Defendant testified to various cash loans he made to Plaintiff which he claimed constituted adequate consideration for the Note. Plaintiff claimed these were gifts, not loans. The Trial Court concluded the Note was supported by adequate consideration and dismissed the complaint. Plaintiff appeals. We affirm.

Joanna Swiger v. Nashville Union Stockyard
M2002-02971-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Irvin H. Kilcrease, 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. The issues involved in this appeal are whether the plaintiff, Joanna Swiger, had waived her right to seek reconsideration pursuant to TENN. CODE ANN. _ 5-6-241(a)(2), and whether Ms. Swiger made a reasonable attempt to return to work. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court is Affirmed JOHN K. BYERS, SR. J., in which ADOLPHO A BIRCH, J. and ALLEN W. WALLACE, SR. J., joined. W. I. Howell Acuff, of Cookeville, Tennessee, for the appellant, Joanna Swiger. David J. Deming, of Nashville, Tennessee, for the appellee, Nashville Union Stockyard Restaurant. MEMORANDUM OPINION 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 finding, 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 courts in workers' compensation cases. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1998). The trial court in this case held that Ms. Swiger had knowingly and voluntarily waived her right to reconsideration of her vocational disability, and the court further held that Ms. Swiger did not make a reasonable attempt to return to work after the injury, and was therefore not entitled to seek reconsideration. We do not find that the evidence preponderates against these findings, and therefore affirm the ruling of the trial court. Facts/Medical Evidence Ms. Swiger injured herself in August 1995 when she slipped in a cooler while working for the Stockyard Restaurant. She settled her workers' compensation claim for 24 percent permanent partial disability to the body as a whole, and in June 1996, Ms. Swiger signed an order approving the settlement that she had reached. Although she was unrepresented at the time, Ms. Swiger had discussed with the judge the issue of waiving her right to reconsideration of her vocational disability, which was a part of the settlement. After her injury, Ms. Swiger had restrictions that would not allow her to continue working as a server at the restaurant. Paulene Krebs, the nurse case manager, testified that a server's position was the only job ever identified to her that was available to Ms.Swiger, and that she tried repeatedly to work with the restaurant to find Ms. Swiger another position. Andrew Penland, the controller at the restaurant, contends that the restaurant tried to return Ms. Swiger to work a number of times by offering Ms. Swiger a number of positions that would be suitable for her, such as a hostess or answering the telephone, but that Ms. Swiger turned down each offer. Michael Baker, a manager at the restaurant, testified that the restaurant tried to return Ms. Swiger to work several times, and actually still considered Ms. Swiger an employee of the restaurant at the time of the settlement. Mr. Baker also testified that Ms. Swiger had expressed interest in returning to work by picking up a uniform, but that she failed to attend two scheduled orientations. Mr. Baker further testified that he phoned Ms. Swiger after these missed orientations, however Ms. Swiger simply stated that she would not work there. Dr. Walter Bell was Ms. Swiger's treating physician. Dr. Bell testified that Ms Swiger had injured her lower rib cage and upper abdominal wall area of her right side when she slipped in the cooler at work. Dr. Bell placed Ms. Swiger on work restrictions of not performing any repetitive activity that produces pain and Ms. Swiger could not lift more than 25 pounds. Dr. Bell also advised Ms. Swiger to use common sense in her restrictions and not do anything that seemed to cause pain. Dr. Bell was of the opinion that Ms. Swiger could not perform the position of a server, but that she could perform nearly any other position at the restaurant. Discussion The first issue for consideration in this case is whether Ms. Swiger knowingly and voluntarily waived her right to reconsideration pursuant to TENN. CODE ANN. _ 5-6-241(a) (2), which provides that an employee may seek reconsideration of vocational disability if the employee is no longer -2-

Virginia Sykes v. Saturn Corporation
M2003-00532-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Jim T. Hamilton, Circuit Court 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. In this appeal, the defendant/appellant, Saturn Corporation, argues that there is no evidence that the permanency of plaintiff/appellee's plantar fasciitis and Morton's neuroma was caused by her employment, and that the plaintiff/appellee's condition of lupus was not caused by her employment. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Affirmed JOHN K. BYERS, SR. J., in which ADOLPHO BIRCH, J. and ALLEN W. WALLACE, SR. J., joined. Thomas H. Peebles, IV, and Terrence O. Reed, Nashville, Tennessee, for the appellant, Saturn Corporation J. Anthony Arena, Nashville, Tennessee, for the appellee, Virginia Sykes MEMORANDUM OPINION 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 finding, 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 courts in workers' compensation cases. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1998). The trial court in this case awarded the plaintiff/employee permanent partial disability benefits as a result of injury to her feet. The defendant argues that the plaintiff failed to carry the burden of proof with respect to causation of the permanency of the plaintiff's conditions, and that the trial court erred in finding that the plaintiff is entitled to permanent partial disability benefits. We do not find that the evidence preponderates against the finding of the trial court, and therefore affirm the ruling of the trial court. Facts The plaintiff/appellee, Virginia Sykes, began working at the Saturn plant in 199, and was assigned to a team that was responsible for attaching laches and other parts to the doors of the cars. Sykes worked ten hour shifts, having to stand on concrete or wood floors the entire time, except for two breaks and a thirty minute lunch break. Sykes began experiencing pain in her feet in 1993 and went to her doctor, Linda Monroe, about this problem. Sykes told Dr. Monroe that she thought the problem was work related, and Dr. Monroe referred her to Dr. McArthur. Sykes reported the problem to Saturn on April 3, 1994. Dr. McArthur treated Sykes with medications, injections, etc., and the treatment did help somewhat. Sykes was then referred to Dr. Davidson, who diagnosed her with plantar fasciitis and Morton's neuroma and kept Sykes off of work. Dr. Davidson tested Sykes for lupus at that time, but the test was negative. Dr. Davidson performed surgery on the left foot of Sykes in 1995, but there was little or no improvement. In 1998, Sykes was diagnosed with lupus. Sykes was on permanent work restrictions of sitting only, but that was modified to one hour of standing, one hour of sitting, alternatively. Sykes was placed on long-term disability because of her lupus. Medical Evidence The depositions of Dr. Randall Davidson and Dr. David Gaw were the only medical testimony before the trial court. Although both doctors agree that the impairment rating should be 4 percent to the left lower extremity and 2 percent to the right lower extremity, they do not agree that the working conditions at Saturn is what caused this condition. Dr. Davidson testified that he believes within a reasonable degree of certainty that lupus caused Sykes foot problems to become permanent, whereas they are usually temporary problems. Dr. Davidson also testified that lupus could have actually been a factor in causing Sykes' plantar fasciitis. Dr. Davidson further testified that there are a number of factors that could have caused Sykes' foot problems, and that he could not state within a reasonable degree of medical certainty that Sykes' work at Saturn did anything more than temporarily aggravate the plantar fasciitis. Dr. Davidson did perform surgery on Sykes' left foot, however there was little or no improvement, so there was no surgery to the right foot. Dr. Davidson put Sykes on permanent work restrictions after the surgery as stated above. Dr. Gaw conducted an independent medical evaluation of Sykes. Dr. Gaw testified that -2-

Bobby L. Blaylock v. Dacco, Inc.,
M2003-00315-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: John Turnbull, Circuit Court 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 trial court found that the plaintiff's respiratory conditions did arise out of the scope and course of his employment. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Affirmed JOHN K. BYERS, SR. J., in which ADOLPHO BIRCH, J. and ALLEN W. WALLACE, SR. J., joined. Randolph A. Veazey, Nashville, Tennessee, for the appellants, Dacco Inc., and Zurich Insurance Company Jon E. Jones, Cookeville, Tennessee, for the appellee, Bobby L. Blaylock MEMORANDUM OPINION 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)(25); 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 workers' compensation cases. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). The trial court found that the plaintiff established a direct causal connection between the conditions under which the plaintiff worked and his respiratory conditions. The defendants/appellants argue that the plaintiff did not show that the plaintiff's respiratory conditions arose out of his scope and course of employment. We agree with the trial court. Facts The plaintiff/appellee, Bobby Blaylock, began working at Dacco in 1979, and has not returned to work there since June 2. Dacco re-manufactures torque converters for use in motor vehicles, and Blaylock's responsibilities there included assembling torque converters, maintenance work, and occasional welding, where he was exposed to some welding smoke. He was also exposed to smoke from other welders in the building. Blaylock has also smoked one to two packs of cigarettes a day for thirty-four years, and now has some respiratory conditions. He never complained of a problem before he left work, but contends now that his conditions arose out of his exposure to the smoke at work. In the early 198's, Dacco did not have very good ventilation, and although some improvements were made throughout the years, a major ventilation system was not installed until approximately 1995. In addition, air samples were not taken by OSHA or TOSHA until approximately 1997, and as such, Dacco does not have any air quality records prior to 1997. Medical Evidence The medical proof at trial consisted of testimony of three doctors, Dr. David Henson, Dr. John Tumen, and Dr. John McElligott. Drs. Tumen and McElligott testified by deposition, while Dr. Henson testified live. Dr. Henson, a board certified pulmonologist, testified that Blaylock suffers from chronic obstructive pulmonary disease, and that Blaylock's exposure to welding fumes at work, and his prolonged smoking, causally contributed to his respiratory disabilities. Dr. Henson also explained that the two exposures were synergistic, that is, the disability a person suffered from the two was greater than the sum of each exposure individually. Dr. John Tumen, Blaylock's treating physician testified that Blaylock's twenty- one year exposure to welding fumes at work, as well as his smoking, both contributed to his respiratory impairments. Dr. Tumen testified that Blaylock's exposure to welding fumes on top of his smoking is what caused his chronic obstructive pulmonary disease. Dr. John McElligott is a board certified internist, and also has a Master's Degree in Occupational Health and Safety. Dr. McElligott relied on a number of sources, including diagrams of the work site that Blaylock worked in, when testifying that Blaylock's respiratory problems where caused solely from Blaylock's cigarette smoking. Dr. McElligott testified that the Dacco facility where Blaylock worked was large enough to accommodate the number of welders and properly ventilate the welding smoke. Dr. McElligott also testified that all of the respiratory conditions from which Blaylock suffers can be caused solely from smoking cigarettes. Dr. McElligott further testified that Drs. Tumen and Henson are incorrect in their assertions that -2-

Frederick J. Jackson v. Paccar, Inc. d/b/a Peterbilt
M2003-00406-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Carol Soloman, Circuit 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. In this appeal, the defendant/appellant argues that the trial court erred in finding that the plaintiff/appellee sustained his carpal tunnel injuries while he was employed with the defendant/appellant, and the defendant/appellant also argues that the trial court's assignment of a 12.5 percent vocational disability is excessive. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Affirmed JOHN K. BYERS, SR. J., in which ADOLPHO A. BIRCH, J., and ALLEN W. WALLACE, SR. J., joined. Terry L. Hill, Nashville, Tennessee, for the appellant, Paccar, Inc. d/b/ a Peterbilt Motors Company Jay R. Slobey and Michael Hornback, Nashville, Tennessee, for the appellee, Frederick Jackson MEMORANDUM OPINION 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 finding, 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 courts in workers' compensation cases. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1998). The trial court in this case found that the plaintiff, Frederick Jackson, sustained a work related carpal tunnel injury in each arm while employed by the defendant, Paccar, Inc., d/b/a Peterbilt Motors Company, and that the plaintiff had sustained a 12.5 percent vocational disability to each arm as a result of his work related injury. We do not find that the evidence preponderates against this finding, and therefore affirm the ruling of the trial court. Facts The plaintiff/appellee began working at Peterbilt in July 1995, where he was first assigned to work as a painter's helper, but moved on to building air piping assemblies, and working in the cab assembly department. In January 2, Jackson reported to Peterbilt that he was having pain and numbness in his hands, but initially his workers' compensation claim was denied. However, under order of the Tennessee Department of Labor, the defendant/appellant provided Jackson with a panel of doctors from which Jackson chose Dr. Schmidt. Jackson was never put under any work restrictions by Dr. Schmidt. Jackson was laid off from Peterbilt July 28, 2. Jackson then took a job with Penske as a mechanic, which also required the use of his hands. Jackson was treated by a number of doctors, but was not diagnosed as having carpal tunnel until May 17, 21 when he was seen by a Dr. Milek, who performed surgery on Jackson. Jackson now works for J.B. Hunt as a lead/foreman. He still has problems griping small objects and still experiences numbness sometimes. Jackson also experiences cramping after prolonged writing. Medical Evidence Jackson consulted a number of doctors regarding his pain and swelling in his hands. Dr. David Martin, a plastic surgeon, was the first to treat Jackson. Dr. Martin diagnosed Jackson as having hand pain of unknown etiology, and released Jackson with no impairments and no restrictions. Jackson also saw Dr. David Schmidt, an orthopedist, Dr. Daniel McHugh, a physiatrist, Dr. Lagron and Dr. Lawrence, none of whom diagnosed Jackson with carpal tunnel syndrome. Jackson was diagnosed with carpal tunnel syndrome on May 17, 21, by Dr. Milek, a hand and wrist doctor. Dr. Milek performed a synovectomy on Jackson's right arm and a carpal tunnel release on the left arm. The surgeries on both arms improved Jackson's condition, especially the synovectomy on the right arm. The only medical record before the trial court was the deposition of Dr. David Gaw, a physician specializing in orthopedics. Dr. Gaw reviewed numerous notes and records from Drs. Milek, Lawrence, Martin, and Schmidt, and also examined Jackson in making his evaluation of -2-

Letivias D. Prince v. State of Tennessee
M2003-00166-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Timothy L. Easter

Petitioner, Letivias D. Prince, filed a petition for post-conviction relief, which was subsequently amended. Following an evidentiary hearing, the trial court dismissed Petitioner's petition. On appeal, Petitioner argues the trial court erred in dismissing his petition for post-conviction relief and contends (1) that his counsel failed to develop a reasonable trial strategy or defenses for Petitioner; (2) that his counsel failed to fully investigate or adequately prepare the witnesses for trial; (3) that his counsel failed to allow Petitioner to testify at trial; and (4) that his counsel failed to ask for a continuance to investigate certain exculpatory evidence presented by the State at the time of trial. After a thorough review of the record, we affirm the judgment of the post-conviction court.