State of Tennessee v. Randall P. Baker
M2001-01603-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Timothy L. Easter

Pursuant to a bench trial, the appellant, Randall P. Baker, was convicted of one count of failure to appear, a class E felony. The trial court sentenced the appellant as a career offender to six years incarceration. On appeal, the appellant contests the trial court's order mandating that his sentence be served consecutively to another sentence not yet served. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

State of Tennessee v. Terrance Deshone Kinnie
W2001-00483-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Roger A. Page

The Defendant, Terrance Deshone Kinnie, was convicted of second degree murder. After a sentencing hearing the Defendant was sentenced to twenty-three years in the Department of Correction. On appeal, the Defendant contends that the evidence is insufficient to support a verdict of guilty beyond a reasonable doubt. We affirm the judgment of the trial court.

State of Tennessee v. Barry Davis
W2001-01395-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Joseph H. Walker, III

The Defendant, Barry Davis, was convicted by a jury of first degree premeditated murder and aggravated assault. His convictions were affirmed on direct appeal. See State v. Barry Davis, No. 02C01-9902-CC-00063, 1999 Tenn. Crim. App. LEXIS 845 (Jackson, Aug. 19, 1999). The Defendant subsequently filed a petition for post-conviction relief, alleging that he received ineffective assistance of counsel at trial. The trial court denied the Defendant's petition and this appeal followed. Finding no merit in the Defendant's allegations, we affirm the judgment of the trial court.

State of Tennessee v. Chester Lee Jenkins
E2001-01173-CCA-R9-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge D. Kelly Thomas, Jr.

This is a Rule 9, Tennessee Rules of Appellate Procedure, interlocutory appeal of the trial court's order sustaining in part and denying in part the defendant's motion to suppress his statement to police. The defendant, who is totally deaf, is charged with first degree murder and aggravated arson. On the morning after the residential fire that claimed the victim's life, a deputy sheriff entered the defendant's home, tapped him on the shoulder to awaken him, and asked, via gestures and a written note, that the defendant accompany him to the sheriff's department for questioning. Investigators at the department interviewed the defendant and took his statement through an interpreter of American Sign Language. The defendant argued that the statement should be suppressed on two grounds: (1) that it was the fruit of an unlawful seizure, in violation of his Fourth Amendment right to be free from unreasonable search and seizure; and (2) that it was taken without adequate Miranda warnings, in violation of his Fifth Amendment right to counsel. Finding that the defendant voluntarily accompanied the deputy to the sheriff's department, but that he was in custody at the department and that the State failed to prove that he had been given an adequate Miranda warning, the trial court denied the motion to suppress on Fourth Amendment grounds, but granted it on Fifth Amendment grounds. The State appeals that portion of the trial court's order sustaining the motion on Fifth Amendment grounds, and the defendant appeals that portion of the order denying the motion on Fourth Amendment grounds. After a thorough review of the record and applicable law, we affirm the judgment of the trial court.

Ronnie M. Malone v. State of Tennessee
M2001-01344-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge J. S. Daniel

The Petitioner pleaded guilty to felony possession of less than .5 grams of cocaine for the purpose of sale and delivery, a Class C felony, and to violating the Motor Vehicle Habitual Offender's Act, a Class E felony. For the felony possession conviction, the trial court sentenced the Petitioner as a Range III, persistent offender to ten years incarceration to be served at forty-five percent. For the motor vehicle habitual offender conviction, the trial court sentenced the Petitioner as a Range II, multiple offender to three years incarceration to be served at thirty-five percent. The trial court ordered that the two sentences be served concurrently, but consecutive to sentences for four prior convictions. The Petitioner filed a petition for post-conviction relief, claiming that his plea was constitutionally defective because he was inadequately represented and that his plea was not voluntarily, knowingly and intelligently entered. The trial court denied relief. After review, we affirm the judgment of the trial court.

State of Tennessee v. John George
M2001-00978-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Allen W. Wallace

This case arises out of a series of armed robberies of gas stations in several counties along Interstate 40. The Defendant, John George, and two codefendants were arrested in Humphreys County, Tennessee. The Defendant gave a statement to police after his arrest confessing his role in robberies in both Humphreys and Dickson counties. Subsequently, the Defendant pled guilty to a charge of aggravated robbery in Humphreys County and was sentenced to nine years in the Department of Correction. In the case before us, the Defendant also entered a guilty plea to aggravated robbery and felony theft arising out of a robbery in Dickson County. After a sentencing hearing, the Defendant was sentenced to nine years for the aggravated robbery and four years for the felony theft to be served concurrently. However, the trial court ordered the sentence to be served consecutively to the Defendant's sentence for aggravated robbery in Humphreys County. The Defendant now appeals the sentence imposed by the trial court. The Defendant contends that the trial court (1) improperly imposed a sentence above the minimum and (2) improperly ordered that the sentence for aggravated robbery to be served consecutively to the Humphreys County sentence. We affirm the judgment of the trial court setting the length of the sentences for aggravated robbery and theft. We remand for further proceedings on the consecutive sentence issue.

State of Tennessee v. Drini D. Xhaferi
M2000-01758-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Robert W. Wedemeyer

Convicted in the Montgomery County Circuit Court of the second-degree murder of his wife, Imja Xhaferi, the defendant, Drini D. Xhaferi, appeals and claims the trial court erred in not instructing the jury as to voluntary manslaughter, in not suppressing evidence seized by military authorities, and in admitting evidence of the defendant's prior assaults of the victim. Finding no reversible error, we affirm.

State of Tennessee v. Michael W. Cooper
M2001-00440-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Cheryl A. Blackburn

The Defendant, Michael W. Cooper, pled guilty to one count of aggravated burglary and one count of aggravated assault. His plea agreement provided that he would be sentenced as a Range II offender; however, the length and manner of service of his sentences were left for the trial court's determination. After a hearing, the trial court sentenced the Defendant to nine years incarceration for each offense, to be served consecutively. The Defendant now appeals, contending that the trial court misapplied an enhancement factor; that the trial court erred in sentencing him to equivalent terms for each offense in spite of finding fewer enhancement factors applicable to the aggravated assault; and that the trial court erred in ordering his sentences to run consecutively. We affirm the judgment of the trial court.

State of Tennessee v. Alfio Orlando Lewis
M2000-03160-CCA-MR3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Cheryl A. Blackburn

The Defendant, Alfio Orlando Lewis, was convicted by a Davidson County jury of two counts of attempted second degree murder and two counts of aggravated assault. After a sentencing hearing, the trial court merged the two aggravated assault convictions into the two attempted second degree murder convictions. The Defendant was sentenced to 12 years to be served consecutively in the Department of Correction on each of the attempted second degree murder convictions for an effective sentence of 24 years. On appeal, the Defendant contends that (1) the evidence is insufficient to support the convictions, (2) the trial court erroneously prevented him from testifying that a fellow inmate confessed to the crime, and (3) the trial court improperly sentenced the Defendant. We affirm the judgment of the trial court.

Tamatha Marie Howe v. Jones Plastic and Engineering
W2001-00555-WC-R3-CV
Authoring Judge: L. Terry Lafferty, Senior Judge
Trial Court Judge: Julian P. Guinn, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel 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. In this appeal, Defendant asserts: (1) the trial court erred in not limiting Plaintiff's permanent partial disability award to two and one-half (2-1/2) times her medical impairment rating of ten percent (1%) as provided by Tenn. Code Ann. _ 5-6-241(a)(1); (2) the trial court's award of seventy-five percent (75%) disability, a multiple of seven and one half (7-1/2) times her impairment rating, should be reduced when there are no specific findings supported by clear and convincing evidence of at least three of four factors contained in Tenn. Code Ann. _ 5-6-242; and (3) the trial court erred in granting Plaintiff temporary total disability benefits from May 2, 1999 until November 3, 1999. After a review of the entire record, applicable law and as discussed below, the Panel affirms in part, reverses in part, and remands to the trial court for specific findings with respect to permanent partial disability benefits. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Affirmed in Part, Reversed in Part and Remanded. L. TERRY LAFFERTY, SR. J., in which JOE C. LOSER, SP. J., and JANICE M. HOLDER, J., joined. John D. Burleson and V. Latosha Mason, Jackson, Tennessee, for the appellant, Jones Plastic and Engineering Company. Charles L. Hicks, Camden, Tennessee, for the appellee, Tamatha Marie Howe. MEMORANDUM OPINION Plaintiff, Tamatha Marie Howe, was thirty-one years old at the time of her injury and had worked for the employer, Camden Plastics, for three months. Plaintiff completed the 1th grade and has been attempting to obtain her GED. Her prior work history consisted of dishwashing, cooking and building furniture. Plaintiff worked for Defendant as a machine operator. On April 19, 1999, Plaintiff slipped on some grease at work and injured her back when it struck a metal bar. On April 2, 1999, x-rays at the Camden General Hospital emergency room reflected no fracture, subluxation or bony destruction. No significant degenerative changes were noted. Plaintiff was given pain medication and referred to her primary doctor. On April 21, 1999, Plaintiff was seen by Dr. Jesse Sewell with complaints of pain in her lower back radiating down her right thigh and leg. Plaintiff was seen by Dr. Sewell several times between April 21, 1999 and May 17, 1999. Dr. Sewell performed an MRI and treated Plaintiff conservatively. Plaintiff was treated by Dr. Sewell until June 2, when she was seen by other doctors. According to company policy, Plaintiff provided Defendant with Dr. Sewell's certificates for return to work/appointments. Plaintiff acknowledged that she did not return to work after receiving a letter from Defendant one day stating, "no show, no call, she was fired." At time of trial, Plaintiff stated that she has not worked since her accident, her back hurts, she cannot lift, bend or hardly walk and is currently on pain medication prescribed by her doctor. Plaintiff's husband corroborated his wife's testimony concerning her difficulties in performing her housework and physical complaints. Plaintiff has attended a school offering vocational assistance, but she complained that the jobs all required lifting. Plaintiff acknowledged that she did not see a doctor after May 2, 1999, because she had been fired and assumed her medical treatment would not be covered. Stacy King, a receiving clerk and Plaintiff's supervisor, testified on behalf of Defendant. She recalled Plaintiff's injury in April 1999, as Plaintiff reported the injury to her. Ms. King was also aware that Plaintiff was terminated. Ms. King testified that she saw Plaintiff one time between April 19, 1999, and her termination date. She stated she was driving along a highway in Bruceton, Tennessee, passing a factory outlet store, when she observed Plaintiff either climbing in or out of a car door window. Plaintiff denied that she could climb in and out of a car window. Sylvia Page, Human Resource Manager, testified that she handles workers' compensation claims for Defendant. Ms. Page identified off-work slips from a doctor's office indicating appointments, return to work, or if the employee is on restricted duty. After Plaintiff's first visit, she was to return to work on April 27. Ms. Page stated that she advised Plaintiff, "When you go for your doctor's appointment, whatever paper work is given to you at the doctor's office, please come back by our office and leave it with us so that we know whether you're on restricted duty or off work." Ms. Page testified that she made the decision to terminate Plaintiff. On the last page of Exhibit 1, Ms. Page identified a doctor's slip which indicated that Plaintiff could return to work on May 2, 1999. Also, above these words were the words "next appointment." To Ms. Page, this indicated that Plaintiff had both an appointment and a return to work on the same day. Plaintiff was scheduled to -2-

Jimmy Wagner v. Tower Automotive
001-00728-WC-R3-CV
Authoring Judge: W. Michael William Michael Maloan, Special Judge
Trial Court Judge: George R. Ellis, 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. _5-6-285 (e)(3) for hearing and reporting to the Supreme Court of findings and fact and conclusions of law. The defendant, Tower Automotive appeals the judgment of the trial court which awarded fifteen percent (15%) permanent partial disability to each arm as being excessive. For the reasons stated in this opinion, We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (2) Appeal as of Right; Judgment of the Chancery Court Affirmed W. MICHAEL MALOAN, SP. J., in which JANICE M. HOLDER, J. and JOE C. LOSER, JR., SP. J., joined. Deana C. Seymour, Jackson, Tennessee, for appellant, Tower Automotive Products Company, Inc. Gayden Drew IV, Jackson, Tennessee, for appellee, Jimmy Wagner MEMORANDUM OPINION The plaintiff, Jimmy Wagner, was forty-one (41) years old at the time of trial. He has a high school education. Prior to working for the defendant, Tower Automotive Products (Tower), in 1992 or 1993, he worked restoring furniture, drove a truck, worked construction, and obtained a welding certificate. He testified he had no prior problems with his arms, elbows, or shoulders before working for Tower. While at Tower, he developed bilateral carpal tunnel syndrome in 1994 and had surgery on both wrists. He did not file a workers' compensation claim. As a result of the surgery, he doesn't have the grip he used to have. At Tower, plaintiff placed twenty (2) to twenty-five (25) pound parts into a press at a rate of two hundred (2) per hour. Plaintiff reported right shoulder and arm pain to his employer on June 9, 1999. Tower referred him to Dr. Claiborne Christian, an orthopedic surgeon, who diagnosed tendinitis of the shoulder. On June 21, 1999, plaintiff complained to Dr. Christian of pain in both elbows which he diagnosed as lateral epicondlylitis. Dr. Christian continued conservative treatment until October 12, 1999, when he performed surgery on the right elbow and on January 19, 2, for the left elbow. Dr. Christian assigned a three percent (3%) permanent partial disability to each upper extremity based on the AMA Guidelines and no impairment for his shoulders. He did not assign any permanent restrictions. Dr. Larry Johnson, an orthopedic surgeon, saw plaintiff on June 3, 2, for shoulder problems. Dr. Johnson was of the opinion plaintiff's work aggravated a congenital defect known as os acromiale, where the end of the acromion is not completely fused. On the last visit of November 6, 2, Dr. Johnson felt his shoulder problems had resolved and did not assign any impairment or work restrictions. Dr. Joseph Boals examined plaintiff on April 12, 2, with a history of injuries to both shoulders and elbows. On examination, Dr. Boals found a full range of motion with impingement syndrome in both shoulders and a full range of motion in both elbows. His grip strengths were average. Dr. Boals assigned a fifteen percent (15%) permanent impairment to each arm for the residual weakness from the elbow surgeries and five percent (5%) permanent impairment to each shoulder for tendinitis for a combined value of nineteen percent (19%) to each upper extremity. Dr. Boals did not rely on the AMA Guidelines. Dr. Boals stated plaintiff should not engage in his present work as a press operator and should not work overhead or away from his body and to avoid repetitive work and gripping. After being released by Dr. Christian, plaintiff returned to Tower as a press operator on a different machine which is easier on his arms because he does not have to bend or straighten them as much as before. Plaintiff testified his elbows bother him every time he has to grip or twist and pain in his shoulders keep him up at night. The trial court awarded fifteen percent (15%) permanent partial disability to each arm. The scope of review of issues of fact is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings, unless the preponderance of evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). Lollar v Wal-Mart Stores, Inc., 767 S.W.2d 143 (Tenn. 1989). When a trial court has seen and heard witnesses, especially where issues of credibility and weight of oral testimony are involved, considerable deference must be accorded the trial court's factual findings. Humphrey v David Witherspoon, Inc., 734 S.W.2d 315 (Tenn. 1987). However, where the issues involve expert medical testimony which is contained in the record by deposition, -2-

State of Tennessee v. Frederick G. Anderson
M2001-00708-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge J. Randall Wyatt, Jr.

Frederick G. Anderson appeals his convictions of two counts of attempted aggravated rape, aggravated kidnapping and aggravated burglary. He received his convictions at the conclusion of a jury trial in the Davidson County Criminal Court. Presently serving an effective nine-year sentence as a violent offender, he challenges the sufficiency of the convicting evidence in this appeal. Because we are unpersuaded by the defendant's claims, we affirm.

James Roger Ford v. State of Tennessee
M2001-01654-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Lillie Ann Sells
Petitioner, James Roger Ford, pled guilty on October 28, 1998, to the following offenses: casual exchange of marijuana, a Class A misdemeanor; sale of diazepam, a Class D felony; sale of more than 1/2 ounce of marijuana, a Class E felony; and two counts of public intoxication, a Class C misdemeanor. In addition, Petitioner entered a "best interest" plea of guilty to the charge of introducing contraband in jail, a Class C felony. The trial court sentenced Petitioner as a Range I offender to eleven months and twenty-nine days for the offense of casual exchange of marijuana, thirty days each for the two counts of public intoxication, two years for the sale of more than 1/2 ounce of marijuana, and four years each for the sale of diazepam and introducing contraband in jail, with all sentences to be served concurrently on a Community Corrections program. On November 24, 1998, a violation of Community Corrections warrant was filed. Petitioner pled guilty to violating the terms of his community-based sentence and agreed to serve the remainder of his four-year sentence in incarceration. On October 27, 1999, he filed a pro se petition for post-conviction relief, which the trial court denied after a hearing on the merits. Petitioner appeals the court's denial of post-conviction relief, alleging that he received ineffective assistance of counsel prior to and during the plea proceedings and that his guilty plea was not knowingly or voluntarily entered. Following a thorough review of the record, we affirm the judgment of the post-conviction court.

State of Tennessee v. Kenneth Paul Dykas
M2000-01665-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge J. Steve Daniel

After a lengthy trial, a Rutherford County jury found the defendant, Kenneth Paul Dykas, guilty of first-degree murder, especially aggravated robbery, and conspiracy to commit especially aggravated robbery. Following a separate penalty trial on the first-degree murder conviction, the same jury sentenced the defendant to life without the possibility of parole, and the trial court subsequently sentenced the defendant as a Range I offender to eleven years on the conspiracy conviction and as a violent offender to 24 years on the especially aggravated robbery conviction. The trial-court- imposed sentences were ordered to run concurrently with one another but consecutively to the first- degree murder sentence. In this appeal, the defendant complains that the evidence is insufficient, that numerous errors in the jury selection process taint his convictions, that DNA test results were improperly admitted, that the state suppressed exculpatory evidence about its jailhouse informant who testified at trial, and that consecutive sentencing was not justified. After a comprehensive review of the record, the briefs of the parties, and the applicable law, we affirm the judgment of the trial court.

State of Tennessee v. Vinson Taylor
W2001-01551-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge R. Lee Moore Jr.

On June 23, 1999, the defendant, Vinson Taylor, pled guilty to the sale of cocaine in excess of .5 grams, a Class B felony. The trial court imposed a sentence of eight years. Almost ten months later, the defendant filed a petition for post-conviction relief. On appeal from an order denying post-conviction relief, this court granted a delayed appeal based upon the failure of trial counsel to file a timely appeal. Vinson Taylor v. State, No. W2000-01991-CCA-R3-PC (Tenn. Crim. App., at Jackson, May 3, 2001). In this delayed appeal, the defendant contends that the trial court should have granted alternative sentencing. The judgment is affirmed.

State of Tennessee v. Vinson Taylor
W2001-01551-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge R. Lee Moore Jr.

On June 23, 1999, the defendant, Vinson Taylor, pled guilty to the sale of cocaine in excess of .5 grams, a Class B felony. The trial court imposed a sentence of eight years. Almost ten months later, the defendant filed a petition for post-conviction relief. On appeal from an order denying post-conviction relief, this court granted a delayed appeal based upon the failure of trial counsel to file a timely appeal. Vinson Taylor v. State, No. W2000-01991-CCA-R3-PC (Tenn. Crim. App., at Jackson, May 3, 2001). In this delayed appeal, the defendant contends that the trial court should have granted alternative sentencing. The judgment is affirmed.

Joseph Azell Lee v. State of Tennessee
E2001-00424-CCA-R3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Stephen M. Bevil

The petitioner appeals from the Hamilton County Criminal Court's denying him post-conviction relief from his 1998 conviction for the attempt to commit aggravated assault and ensuing twelve-year sentence as a career offender. He contends that he received the ineffective assistance of counsel. We affirm the conviction.

Melinda F. Peeler v. Kimberly-Clark Corporation,
E2001-00541-WC-R3-CV
Authoring Judge: Thayer, Sp. J.
Trial Court Judge: Frank V. Williams, III, Chancellor
The trial court dismissed the complaint finding proper notice of injury had not been given and that a reasonable excuse did not exist for the failure to give notice. The employee appealed insisting she was not aware that she had a work-related injury. Judgment of the trial court is affirmed.

Arminta C Arter W Oods v. City of Mcm Innville
M2001-00680-WC-R3-CV
Authoring Judge: Howell N. Peoples, Special Judge
Trial Court Judge: Richard McGregor, Special Judge
The employer appeals an award of workers' compensation benefits to an employee who, while attending a work-related seminar distant from her place of employment, was injured on a personal mission. We vacate the judgment as void and remand for a trial by a duly elected judge.

Judy Lynn Popa v. Mckinnon Lumber Co., Inc.
M2001-01743-WC-R3-CV
Authoring Judge: James L. Weatherford, Sr. J.
Trial Court Judge: Allen W. Wallace, Judge
The appellant (mother of the three minor children of the deceased employee) contends that the trial court erred in not commuting the surviving childrens' benefits to a lump sum. The trial court ordered: 1) that the accrued death benefits be paid into the Circuit Court Clerk's office and held in trust for the three minor children until their eighteenth birthdays; and 2) the remaining benefits be paid to the clerk's office in bi-weekly installments to be invested and held in trust for the children's benefit.

Jody Collins v. Lear Seating Corporation,
E2001-00223-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Ben W. Hooper, Ii, Judge
The trial court found the plaintiff had suffered a work-related injury and awarded 7 percent permanent partial disability to the right arm. We reverse the judgment of the trial court and dismiss this case.

Tammy Jean Dedmon v. Tennessee Food Services, Inc. d/b/a
W2001-00067-WC-R3-CV
Authoring Judge: W. Michael William Michael Maloan, Special Judge
Trial Court Judge: C. Creed Mcginley, Judge
In this appeal, the employer contends the evidence preponderates against the trial court's award of twenty-five percent (25%) permanent partial disability to the body as a whole. For the reasons stated in this opinion, We affirm the judgment of the trial court.

Timothy Tidwell v. Verplank Enterprises, Inc.
M2000-00551-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Jim T. Hamilton, Circuit 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. 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 FRANK F. DROWOTA, III, J. and JOSEPH C. LOSER, JR., SP. J., joined. Joseph M. Huffaker, Nashville, Tennessee, for the appellant, Verplank Enterprises, Inc. Robert D. Massey, Pulaski, Tennessee, for the appellee, Timothy D. Tidwell. OPINION Facts At the time of this trial, which was held on January, 4, 2, the plaintiff was 36 years of age. He had graduated from high school and had vocational training in combination welding. The plaintiff was in the United State Air Force for six years where he worked as a combination welder. The plaintiff's work history and training are almost exclusively as a welder. On July 28, 1998, the plaintiff was working for the defendant. On that date, he was moving a casket lid from a saw to a table. The plaintiff felt a burning sensation in his shoulder as he did so. The defendant referred the plaintiff for medical care and the plaintiff was seen by Dr. Lloyd Johnson, an orthopedic surgeon, a physician approved by the defendant. The plaintiff was seen by Dr. John McInnis on one occasion at the request of the defendant for evaluation. The plaintiff was unable to continue working for the defendant because of the injury. Medical Evidence Dr. Johnson first saw the plaintiff on September 29, 1998, and determined he had sustained a cervical strain and an injury to his right shoulder. Dr. Johnson saw the plaintiff again on October 13, 1998 after an MRI had been done. The MRI showed the plaintiff had a bulging disc at C4-C5. Dr. Johnson was of the opinion the plaintiff's bulging disc was caused by the injury of July 28, 1998. Dr. Johnson continued to see the plaintiff over the course of several months, during which he found the plaintiff's range of motion was diminished and that he was continuing to have pain as a result of the injury. Dr. Johnson placed permanent restrictions of lifting up to 5 pounds frequently, 65 pounds occasionally and to not work with a helmet (hard hat) for more than one hour at a time twice a day. Dr. Johnson found the plaintiff suffered a 12 percent whole body permanent disability as a result of the injury. Dr. John McInnis examined the plaintiff on behalf of the defendant for the purpose of evaluation. The examination was done on April 15, 1999. Dr. McInnis found there was some loss of motion in the plaintiff's spine and that he had a chronic strain of the muscle in the neck and of the trapezius muscle. Dr. McInnis would restrict the plaintiff from lifting more than five or ten pounds above his shoulders and was of the opinion his work as a welder may accentuate the plaintiff's neck pain. Dr. McInnis was of the opinion the plaintiff had sustained a 5 percent permanent medical impairment to the body as a whole. Discussion The defendant's first contention that the evidence does not support the finding of the trial court that the plaintiff suffered a worker's compensation disability of 72 percent is because the trial court relied upon the testimony of Dr. Johnson, who, according to the defendant, did not properly evaluate the plaintiff under the A.M.A. guidelines. The defendant's complaint is that Dr. Johnson's evaluation is not in compliance with the A.M.A. Guidelines because Dr. Johnson did not use an inclinometer in determining the range of motion as set out in the guidelines. Dr. Johnson testified he followed the A.M.A. Guideline and these allowed the use of other methods of determining loss of motion if the injury did not fit within the definition of the Guidelines. He was of the opinion that the plaintiff's injury fit the exception and proceeded accordingly. The defendant insists that Tennessee Code Annotated _ 5-6-24(d)(3), which directs the use of the guidelines is for the purpose of standardizing the method of rating disabilities. See Corcoran v. Foster Auto GMC, Inc.,746 S.W.2d 452 (Tenn. 1988). The defendant argues, therefore, that Dr. Johnson's evaluation should be rejected. The defendant contends that the only reliable medical testimony is that of Dr. McInnis, who used the inclinometer in determining the plaintiff's range of motion. The defendant argues, therefore, that the impairment rating of 5 percent found by Dr. McInnis should control. Based upon this, the defendant says the award should not be more than 3 percent vocational impairment. We find the defendant's assertions on the issue not to be persuasive. Dr. McInnis found the only -2-

State of Tennessee v. Hobert Dean Davis
E2000-02879-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge James B. Scott, Jr.

The defendant pled guilty to burglary (Count One), theft (Count Two), and vandalism (Count Three) and was sentenced pursuant to a plea agreement to two (2) years for Count One and eleven months and twenty-nine days for both Count Two and Count Three. Counts Two and Three were to be served concurrently but consecutively to Count One. The judgment forms entered for each count indicated that the defendant was to receive 201 days of pretrial jail credit. Sixteen months after the final judgments were entered, the state moved the trial court to correct the original judgments pursuant to Tennessee Rule of Criminal Procedure 36. Thereafter, corrected judgments were entered for Counts Two and Three indicating that the defendant was to receive 0 days pretrial jail credit on those counts. Generally, a trial court loses jurisdiction to amend a judgment once it becomes final. After a thorough review of the record, we conclude that the trial court did not make a finding as to whether there was a clerical mistake or mistake of law in the original judgments. Absent a finding that there was a clerical mistake, the trial court was without jurisdiction to alter the final judgments. Therefore, we reverse the judgments as corrected and remand to the trial court for determination of whether there was a clerical error in the original judgments.

Woodlawn Memorial Park, Inc. vs. Roger Keith, et al.
M2000-00612-SC-WCM-CV
Authoring Judge: Justice William M. Barker
Trial Court Judge: Judge Carol L. Soloman

In this workers' compensation appeal, an employee was allegedly injured in the course and scope of her employment. While purportedly seeking medical treatment for these injuries, she contracted an infection and died. The employer filed suit in the Davidson County Chancery Court claiming that no compensable injury occurred and that the employee used the excuse of an injury to seek prescription drugs for her addiction. The trial court held for the employer and later granted the employer's motion for discretionary costs. The Special Workers' Compensation Appeals Panel reversed, finding that a preponderance of the evidence established that a work-related injury did occur and that the employee died as a result of seeking treatment for those injuries. We then granted the employer's application for full court review and hold that the trial court's findings are supported by a preponderance of the evidence. We also hold that the trial court did not abuse its discretion in awarding discretionary costs to the employer. The judgment of the Davidson County Chancery Court is affirmed.