Cheryl Ellis v. Smith Co. Coatings,
M1999-02336-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: John Wooten, Judge
In this appeal, the employee insists the trial court erred in dismissing her claim for failure to give written notice of her claimed injury and for insufficient proof of compensability. As discussed below, the panel has concluded the judgment should be affirmed.

Tammy Lynne Pruett v. Service Merchandise Company,
M2000-00636-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Carol L. Mccoy, Chancellor
In this appeal, the appellant insists the trial court erred in disallowing her Tenn. R. Civ. P. 6 motion for relief from a final judgment. As discussed below, the panel has concluded the judgment should be affirmed.

Terry Traylor v. North American Royalties, Inc., d/b/a
E2000-01053-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Jacqueline E. Schulten, Judge
The trial court granted the defendant's motion for summary judgment and dismissed the plaintiff's petition to reopen his previously settled workers' compensation case under the provisions of Tennessee Code Annotated _ 5-6-241(a)(2). We reverse and remand the case to the trial court for further proceedings in accordance with this opinion.

State of Tennessee v. Richard M. Far, Jr.
M1999-00644-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge James K. Clayton, Jr.

On August 5, 1998, Richard M. Far, Jr., the Defendant and Appellant, was indicted by a Rutherford County Grand Jury for one count of arson and one count of setting fire to personal property. The Defendant was tried in absentia. At the close of the State's proof, the trial court granted the Defendant's motion for acquittal regarding setting fire to personal property. Following trial, the jury convicted the defendant of arson. After a subsequent sentencing hearing, also conducted in absentia, the trial court sentenced the defendant as a Range III, persistent offender to fourteen years incarceration. On appeal, the Defendant argues (1) that the trial court erred in excluding him from his trial, and (2) that the trial court erroneously sentenced the defendant. Because we find that rule 43 of the Tennessee Rules of Criminal Procedure prohibits trial in absentia when the defendant is not present at the beginning of trial, we reverse the judgement of the trial court and remand for a new trial.

State of Tennessee v. Thorsten John Boger
M1999-02476-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge John H. Gasaway, III

Thorsten John Boger appeals from the sentencing decision of the Montgomery County Circuit Court following his guilty pleas to two counts of class B felony sale of cocaine. Boger was sentenced to nine years in the Department of Correction on each count, with the sentences to be served concurrently. On appeal, he argues that he should have received the minimum sentence of eight years. Finding no error, we affirm.

State of Tennessee v. Carl Johnson and Derrick Sutton
W2000-00278-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge James C. Beasley, Jr.

The defendants, Carl Johnson and Derrick Sutton, were each convicted by a jury of especially aggravated robbery. Johnson raises three issues on appeal: (1) whether the evidence was sufficient to support his conviction for especially aggravated robbery; (2) whether the trial court erred in denying his motion for severance; and (3) whether the trial court erred in sentencing him to the maximum sentence of twenty-five years. Sutton challenges the sufficiency of the convicting evidence. We affirm the judgments of the trial court.

Joanne Dickey, et vir., v. W. Keith McCord, et al.
E2000-00567-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Harold Wimberly

This is a personal injury action arising from a boating accident in the Bahamas. At trial, the jury returned a verdict for the defendants. The plaintiffs appealed, alleging that the jury's verdict was not supported by any material evidence as well as alleging error with the trial court's function as thirteenth juror and with its evidentiary rulings concerning an expert witness and admission of testimony concerning non-use of life preservers by the plaintiffs. We affirm.

Thomas Daniel Whited v. Wilson Farmers Cooperative,
M2000-00833-WC-R3-CV
Authoring Judge: Loser, Sp. J.
Trial Court Judge: J. O. Bond, 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 employer insists the trial court erred in its resolution of the issues of causation, permanency, extent of permanent disability, medical expenses and discretionary costs. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Criminal Court Affirmed LOSER, SP. J., in which BIRCH, J. and PEOPLES, SP. J., joined. William E. Halfacre, III, Madewell, Jared, Halfacre & Williams, Cookeville, Tennessee, for the appellants, Wilson Farmers Cooperative and Hartford Casualty Insurance. Lena Ann Buck and Frank Buck, Buck & Buck, Smithville, Tennessee, for the appellee, Thomas Daniel Whited. MEMORANDUM OPINION The employee or claimant, Whited, is 18 or 19 years old with an eighth grade education, who reads at a third grade level and performs mathematics and comprehensive reading at the second grade level. On November 13, 1997, while working for the employer, Wilson Farmers Coop, he suffered a crushing injury to his left hand, when the hand was accidentally caught between a fork lift and a steel post. The manager of the Coop was an eye witness to the accident and so testified at the trial. Whited continued to work, but has repeatedly re-injured the same hand. He has seen a number of doctors, some of whom were provided by the employer and some of whom were not. Warren McPherson is a board certified neurosurgeon licensed in Tennessee. He saw the claimant once on December 1, 1997. Dr. McPherson's impression was a soft tissue injuryto the area of the fourth knuckle, no evidence of reflex sympathetic dystrophy (RSD) involving the left upper extremity. The doctor said he would be "very surprised" if the claimant had any permanent impairment. Douglas Ray Weikert, is a board certified orthopedic surgeon licensed in Tennessee with certifications in hand and microsurgery. Dr. Weikert first saw the claimant on June 8, 1998. The doctor's first impression was a psychological condition, conversion reaction. When he saw the claimant on July 15, after another accident at work, he noticed some localized swelling of the injured hand, but ruled out RSD and opined the claimant would retain no permanent impairment. John McInnis is a board certified orthopedic surgeon licensed in Tennessee. Dr. McInnis first saw the claimant on February 9, 1998, when the claimant complained of pain. He continued to complain of pain in his injured hand when the doctor saw him on other occasions and after tests were ordered. Dr. McInnis continually noticed swelling and tenderness in the hand, but ruled out RSD and prescribed no restrictions. Robert E. Ivy is an orthopedic surgeon licensed in Tennessee, with a certificate in hand surgery. Dr. Ivy performed an independent examination of the claimant on April 2, 1999 and ruled out RSD and did not assign any permanent impairment. Richard Theodore Rutherford is a licensed practicing physician in Carthage, who saw the claimant in September 1998, prescribed pain medication and suggested he see a hand surgeon. Dr. Rutherford saw the claimant again the following month and the injured hand was swollen and very tender. He made a preliminary diagnosis of RSD. The claimant's pain, the doctor said, "seemed to be far out of degree to what I was seeing and that's very typical of RSD." Dr. Rutherford referred the claimant to Dr. Thomas Hardy, who confirmed his opinions and findings. Thomas L. Hardy is a Tennessee licensed physician specializing in pain medicine, who first saw the claimant on April, 28, 1999. He observed that the injured left hand had decreased nail bed profusion, decreased blood flow to the hand, shiny skin on the fingers, coolness and loss of hair and that the hand was hypersensitive to light touch, pinprick and vibration. Stellate ganglion blocks failed to relieve the pain or raise the temperature in the hand. Dr. Hardy diagnosed RSD or complex regional pain syndrome. John R. Moore is a board certified plastic surgeon, who first saw the claimant on November 11, 1998 and diagnosed RSD. Dr. Moore's testimony established that the condition was causally related to the crush injury at work and that the claimant would be left with a "significant" permanent impairment. His testimony included the following exchange: -2-

Donald Earl Mathis v. Emerson Motor Company
W1999-01792-WC-R3-CV
Authoring Judge: Wil V. Doran, Sp. J.
Trial Court Judge: George R. Ellis, Chancellor
The plaintiff suffered an injury to two of his fingers. The issue for review is whether the trial court erred in finding that the plaintiff sustained an 85 percent permanent partial disability to the right arm. We reverse the trial court and modify the judgment to award the plaintiff 85 percent permanent partial disability to the right hand.

Jennifer Mcgarity v. Tecumseh Products Company, et al.
W1999-01704-WC-R3-CV
Authoring Judge: Henry D. Bell, Sp. J.
Trial Court Judge: Hon. C. Creed Mcginley, Judge
Defendant Tecumseh Products Company appeals the judgment of the Circuit Court of Henry County awarding plaintiff permanent partial disability asserting error as to issues of notice, statute of limitations, and causation. For the reasons stated in the opinion We affirm the judgment of the trial court.

Philips Consumer Electronics Company v. Kathy A.
E2000-00791-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Dale C. Workman, Judge
This workers' compensation suit was instituted by the employer. The trial judge found the employer should pay all medical care necessary for the treatment of an injury at work, that no temporary total benefits were owed, and that the employee suffered no permanent disability. We affirm the judgment of the trial court.

State of Tennessee v. Eddie Erwin
E2000-00989-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge R. Jerry Beck

The Defendant, Eddie Erwin, was convicted by a jury of the sale of cocaine, a Class C felony. He was sentenced as a Range III, persistent offender to twelve years incarceration. In this appeal as of right, he agues (1) that the evidence was insufficient to support the conviction; (2) that the trial court erred by convicting the Defendant based on the original indictment rather than the re-indictment; (3) that the trial court erred by failing to suppress a videotape containing statements the Defendant made while talking on a telephone in the jail; (4) that the trial court erred by admitting into evidence a photographic lineup; and (5) that the trial court erred by enhancing the Defendant's sentence based on three prior Illinois felony convictions and based on post-offense conduct. We conclude that the evidence was sufficient to support the conviction, that the Defendant was not convicted based on the wrong indictment, and that the trial court did not err by admitting the videotape and the photographic lineup into evidence; thus, we affirm the Defendant's conviction. We do, however, find that the trial court erred by sentencing the Defendant as a Range III, persistent offender, based on three prior Illinois felony convictions, because those convictions would have been misdemeanors under Tennessee law. We therefore modify the Defendant's sentence to ten years as a Range II, multiple offender. We also remand for correction of the judgment, which contains a clerical error reflecting an incorrect offense date.

State of Tennessee v. Anthony Ray Lawson
E2000-01419-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Richard R. Baumgartner

Anthony Ray Lawson appeals his conviction of especially aggravated robbery and contests the sufficiency of the evidence. Upon review, we hold that the evidence is sufficient to sustain the conviction and therefore affirm the judgment of the trial court.

Jesus M. Parra v. Rieth-Riley Construction Co.,
W1999-00419-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Robert L. Childers, Judge
The trial judge found the plaintiff, Jesus M. Parra, suffered an 8 percent permanent partial disability to the right foot. The defendants, Rieth-Riley Construction Company and Zurich-American Insurance Group, contend the evidence does not support the award and further say the injury was limited to two toes rather than to the foot. We affirm the judgment of the trial court.

Kitty Lou Kimbro v. Ferro Corporation
M2000-00400-WC-R3-CV
Authoring Judge: Carol Catalano, Sp. J.
Trial Court Judge: J. O. Bond, 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) (1999) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Ferro Corporation raises three issues on appeal, arguing that the trial court erred in (1) finding that the plaintiff had suffered a permanent injuryto the left upper extremity, (2) finding a 1 percent anatomical impairment to the left upper extremity, and (3) assessing awards of 45 percent permanent partial disability to the right upper extremity and 3 percent permanent partial disability to the left upper extremity. On review, the Panel concludes that the evidence does not preponderate against the trial court's finding of a permanent injury to the left upper extremity. Furthermore, though we conclude that the trial court's finding of 1 percent anatomical impairment to the left upper extremity was excessive, we nonetheless hold that the evidence does not preponderate against the trial court's awards of 45 percent permanent partial disability to the right upper extremity and 3 percent permanent partial disability to the left upper extremity. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Criminal Court Affirmed CAROL CATALANO, Sp. J., in which ADOLPHO A. BIRCH, JR., J., and JAMES L. WEATHERFORD, Sr. J., joined. Jill A. Hanson, Nashville, Tennessee, for the appellant, Ferro Corporation. Susan K. Bradley, Murfreesboro, Tennessee, for the appellee, Kitty Lou Kimbro. MEMORANDUM OPINION I. Facts and Procedural History Kitty Lou Kimbro,1 the plaintiff, began working for Ferro Corporation (Ferro),the defendant, in July 1987. Except for a two-year layoff which ended in 1993,2 she was employed by Ferro continuously. During her employment with Ferro, Kimbro occupied a variety of positions, working as a smelter operator, running machines in Ferro's milling department, and mixing, weighing, and packaging raw materials. Many of these tasks involved strenuous lifting of boxes and bags of materials. At some point while working in the milling department, Kimbro noticed that she was experiencing pain in her hands. In February 1998, Kimbro reported this pain to Ferro. Initially, Kimbro was treated conservatively for her injuries, but eventually she was referred to Joseph Weick, M.D., who performed a surgical "carpal tunnel release" on her right arm. Kimbro returned to work for Ferro on light duty the day after her surgery. Subsequently, Kimbro transferred to Ferro's "lab" department, where she worked full time and without restrictions, though she still experienced pain to her hands while writing and while operating air hoses used in the lab. During this time, Kimbro complained to Weick on numerous occasions that she was having difficulty with her grip strength and with controlling her thumb. Kimbro continued to work for Ferro for approximately nine months before she was terminated.3 At trial, Kimbro testified that she continued to have pain in the edges of her hands, through her thumbs and down the sides of her palms, and she also had symptoms of numbness and problems gripping. Kimbro also presented the deposition testimony of orthopedic surgeon Richard Fishbein, M.D., who assigned Kimbro an anatomical impairment rating of 5 percent to the left upper extremity and 12 percent to the right upper extremity. Ferro, on the other hand, presented the deposition testimony of Wieck, who assigned Kimbro an anatomical impairment rating of 5 percent to the right upper extremity, but no impairment rating to the left upper extremity. Wieck, however, conceded that he did not evaluate her left extremity in determining impairment. The trial court concluded that Kimbro had suffered a permanent vocational disability resulting from bilateral carpal tunnel syndrome, and it awarded Kimbro benefits based on findings of 45 percent permanent partial disability to the right upper extremity and 3 percent permanent partial disability to the left upper extremity. Ferro appealed, asserting that the trial court erred in (1) finding permanent injury to the left upper extremity; (2) finding a 1 percent anatomical impairment to the left upper extremity; and (3) assessing permanent partial disability awards of 45 percent to the 1At trial, Kimbro testified that she was forty years old and has obtained her GED. 2During the period in which she was laid off from Ferro, Kimbro worked in various jobs as a dock worker, waitress, and cashier. 3In her brief, Kimb ro intimates that she was wron gfully terminated because she was "fired . . . after giving her deposition in this workers' co mpensatio n action." Fe rro maintains that she was term inated for "atten dance rea sons." The allegatio n that Kimbro was fired wrongfully, however, is not part of the action before the Panel and will not be addressed. -2-

Philip Workman v. Donal Campbell, et al.
M2001-01445-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Ellen Hobbs Lyle
This case involves the extent to which the State of Tennessee may regulate a condemned prisoner's right to be attended by his personal minister in the hours leading up to his execution. Prisoner sued the Commissioner of the Tennessee Department of Corrections and the prison warden based upon the warden's denial of prisoner's request that his personal religious advisor be physically present at all times leading up to his execution. The chancery court ordered the issuance of a writ of mandamus requiring the prison warden to allow the prisoner's minister to attend the prisoner at all times until the prisoner enters the death chamber. We reverse and remand.

State of Tennessee v. Charlie M. Gardner
M1999-02214-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Cheryl A. Blackburn

The Defendant, Charlie M. Gardner, was found guilty by a Davidson County jury of one count of first degree premeditated murder and two counts of reckless aggravated assault. The jury sentenced the Defendant to life without the possibility of parole for the first degree murder conviction, and the trial court sentenced the Defendant to four years for each reckless aggravated assault conviction, all sentences to be served consecutively. In this appeal, the Defendant challenges (1) the admissibility of hearsay statements as falling within the excited utterance exception, (2) the sufficiency of the evidence as to all three convictions and (3) the fatal variance between the allegations in count two of the indictment and the proof offered at trial. Based upon our review, we affirm the judgment of the trial court.

State Farm Ins. Co. vs. Charles Schubert, et al
E2000-02054-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: James B. Scott, Jr.
State Farm Insurance Company filed a declaratory judgment action seeking a determination as to its liability under the uninsured motorist ("UM") coverage of an automobile insurance policy issued to Charles Schubert. Schubert and his wife had obtained judgments against an uninsured motorist totaling $330,000. Of this amount, Schubert was awarded $260,000 for his injuries. His wife, Clara Schubert, was awarded $70,000 for loss of consortium. At the time of the automobile accident that gave rise to the underlying claims, Schubert was acting within the course and scope of his employment; as a result of his injuries, he received workers' compensation benefits of $89,518.08. We are asked to decide how much of the UM single-person coverage limit of $100,000 is payable in view of the language of the following provision of the policy as it applies to the UM coverages:

The Weather Doctor Services Co., Inc., vs. Mark Stephens, et al
E2000-01427-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Daryl R. Fansler
This is a suit in quantum meriut by The Weather Doctor Services Co., Inc., a subcontractor of David T. Goldnetz, d/b/a Architectural Custom Home Builders, Inc., against Mark Stephens and his wife Cindy Stephens. The Trial Court sustained the Stephenses' motion for summary judgment, finding that the undisputed facts did not sustain a cause of action in quantum meriut. We affirm.

Bobby King vs. City of Gatlinburg
E2000-00734-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Telford E. Forgerty, Jr.
The Trial Court refused to entertain plaintiff's action on the grounds there was no justiciable controversy between the parties. We affirm.

Darrell Smith vs. Chattanooga Medical Investors, Inc. d/b/a Life Care Center Chattanooga
E2000-01352-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: W. Frank Brown, III
Plaintiff's action for breach of contract for nursing home services was dismissed by the Trial Judge on Summary Judgment. On appeal, we hold plaintiff was third party beneficiary on contracts between the State of Tennessee and defendant.

In Re: T. M. & M.M. vs. Department of Children's Svcs
E2000-01870-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: W. Dale Young
Father sought to recover for childcare services ordered to be furnished by the Department of Children's Services in the Juvenile Court of Sevier County. The Circuit Court dismissed the Petition, but approved an award of attorney fees. On appeal, we affirm in part and reverse in part.

Jennifer Gregg vs. Shirley McKay, Diane Farley, and Michael Floyd
E2000-01754-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: O. Duane Slone
This is a suit seeking damages for sexual harassment filed by the Plaintiff/Appellant, Jennifer Gregg, in the Circuit Court for Sevier County against the Defendants/Appellees, Shirley McKay and Diane Farley. The Trial Court sustained the Defendants' motion for summary judgment . We vacate the judgment of the Trial Court and remand for further proceedings consistent with this opinion. Costs of appeal are adjudged against the Defendants.

Anna Williams vs. James Williams, II
E2000-03005-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: William R. Brewer
In this post-divorce case, Anna M. Williams ("Mother") filed a petition against James K. Williams, II ("Father"), seeking a modification of the parties' divorce judgment, which judgment, inter alia, had awarded the parties joint custody of their minor daughter, Ashlyn Brooke Williams (DOB: July 20, 1996). The petition sought an alteration of Father's visitation schedule and an increase in Father's child support obligation. In response, Father filed, inter alia, a petition for change of custody. The trial court found a substantial and material change in circumstances and awarded Father sole custody of Ashlyn. We reverse.

Carolyn Sue Moore v. Wal-Mart Stores, Inc.
W2000-00719-WC-R3-CV
Authoring Judge: C. Creed Mcginley, Sp. J.
Trial Court Judge: Robert L. Childers, Judge By Interchange
The employer contends this claim is time barred by the statute of limitations and notice provisions and that the award to the workers' scheduled member was excessive. As discussed below, the panel concludes that the judgment of the trial court should be affirmed in all respects.