The defendant, Mark Anthony Bales, pled guilty to attempted second degree murder. After accepting his plea, the trial court sentenced the defendant to serve eleven years as a Range I standard offender. The defendant now appeals his sentence arguing that the trial court erred (1) by finding that when the defendant committed the instant crime, he treated the victim with exceptional cruelty; (2) by giving insufficient weight to two applicable mitigating factors, the defendant's excellent social history and his lack of a criminal record; and (3) by sentencing the defendant to a term of years that made him ineligible for consideration for an alternative sentence. After a thorough review of the record, we find that none of the defendant's allegations merit relief and accordingly affirm his sentence.
Issue: Whether the issuance of a capias tolls the expiration of a probationary sentence. Upon this record, we conclude it does not. We reverse the revocation of the defendant's probation, concluding his probationary sentence had expired.
The appellant, Dennis Pylant, was found guilty in the Cheatham County Circuit Court of felony murder committed in the perpetration of aggravated child abuse. The appellant received a sentence of life imprisonment in the Tennessee Department of Correction. On appeal, the appellant raises several issues for our consideration, namely the sufficiency of the evidence, evidentiary issues, and a complaint regarding the jury instructions. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.
Pursuant to Tennessee Supreme Court Rule 23, we accepted certification of questions of law from the United States District Court for the Western District of Tennessee. We are asked by the federal district court to construe Rule 9, section 25 of the Rules of the Supreme Court of Tennessee. Specifically, we are asked to determine whether Richard Roe, a layperson (i.e., a non-attorney), may be charged with contempt for disclosing that he filed a complaint with the Tennessee Board of Professional Responsibility against an attorney in violation of the confidentiality provision embodied in Rule 9, section 25, and if so, by whom and before what tribunal? For the reasons given herein, we answer that the confidentiality requirement of Rule 9, section 25 applies to non-lawyers and lawyers alike. The appropriate sanction for a violation of Rule 9, section 25 is an action of contempt. Contempt proceedings may be initiated by the attorney against whom the complaint has been filed, the complainant, the Board of Professional Responsibility, or this Court. Finally, we hold that such a petition for contempt should be filed in this Court, whereupon assignment shall issue to a special master to conduct an evidentiary hearing. The record and findings of fact of the special master shall then be sent to this Court whereupon a determination of guilt and punishment, if any, will follow.
Davidson
Supreme Court
State of Tennessee v. Kenneth Jordan M2002-01010-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Cheryl A. Blackburn
The defendant, Kenneth Jordan, entered pleas of guilt to aggravated burglary and aggravated assault. The trial court imposed Range I sentences of six years for each offense to be served concurrently. At the conclusion of a sentencing hearing, the trial court imposed a sentence of one year with split confinement. The defendant was given the choice of serving one year with work release and the balance on probation, or participating in a Lifeline Therapeutic Community Program with the opportunity to apply for early release. In this appeal of right, the defendant argues that the trial court failed to adequately consider the statutory guidelines and should have granted probation. The judgments of conviction are affirmed and the effective sentence is modified to require 90 days in jail with work release followed by supervised probation.
The petitioner, John Wayne Gray, appeals the Franklin County Circuit Court's denial of post-conviction relief from his conviction for the sale of a Schedule II controlled substance. On appeal, the petitioner claims that he received ineffective assistance of counsel. Following a review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.
The petitioner appeals the dismissal of his petition for post-conviction relief, in which he alleged he received ineffective assistance of counsel at his community corrections revocation and resentencing. The post-conviction court found post-conviction relief was unavailable to one challenging a community corrections revocation proceeding. We conclude that although the post-conviction process may not be used to collaterally attack a probation revocation, it is available to attack a community corrections revocation/resentencing. Thus, we reverse and remand for further proceedings.
The Chancery Court of Sumner County declared the parties divorced, divided the marital property, and awarded the wife rehabilitative alimony. On appeal the wife argues that since her conservator executed her counterclaim for divorce, the court had no jurisdiction to award her a divorce. She also contests the amount and duration of the alimony awarded to her. We affirm the divorce, but we reverse the award for rehabilitative alimony and modify the award to alimony in futuro. We remand for a hearing as to the amount.
The Circuit Court of Davidson County granted summary judgment to the owner of a building in a slip and fall case. We concur with the trial court in its conclusion that the defendant did not owe the plaintiff a duty to make its premises safer and that the plaintiff's own negligence was more than 50 percent of the cause of the accident. We affirm.
The petitioner appeals after being denied post-conviction relief. She pled guilty to one count of aggravated burglary and ten counts of forgery. Pursuant to her plea agreement, she received an effective sentence of twenty years as a Range III offender. Her post-conviction relief petition alleged she received ineffective assistance of counsel and that she did not enter her plea knowingly and voluntarily. We conclude the evidence does not preponderate against the post-conviction court's findings. We affirm the judgment of the post-conviction court.
This appeal arises out of a condemnation proceeding brought by Rutherford County against the appellees. The appellant, claiming an interest through her deceased husband in the property to be condemned, filed a motion to intervene in the proceeding. The trial court denied the appellant's motion to intervene and dismissed her cross-claim for declaratory judgment, finding that she held no interest in the property under the provisions of the granting instrument. The Court of Appeals affirmed the judgment of the trial court, holding that the granting instrument conveyed a contingent remainder to each member of the class. As such, the conveyance to the appellant's husband lapsed when he predeceased the life tenant, leaving appellant without an interest in the property. We granted review, and we now hold that each class member held a vested, transmissible interest in the property prior to the death of the life tenant and that the appellant holds no interest in the property. We remand this cause to the trial court for proceedings consistent with this opinion.
Rutherford
Supreme Court
Clois Junior Clark v. Peterbilt Motor Company M2002-00452-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: C. L. Rogers, Judge
The plaintiff filed this compensation complaint in which he alleged he sustained injury to both arms as a result of continuing repetitive use thereof while working as a welder for the plaintiff. The trial judge found in favor of the plaintiff and awarded him temporary total disability benefits and found he had sustained a 30 percent permanent partial impairment to both arms. The defendant contends the trial judge erred in finding the plaintiff's medical problems arose out of and in the course of his employment and that the award of 30 percent impairment to each arm was excessive. We affirm the judgment of the trial court.
Byron M. Edwards appeals the denial of his petition for post-conviction relief attacking his jury conviction for aggravated robbery and for which he was sentenced to 30 years. He argues that he received ineffective assistance of counsel in connection with a plea offer by the state that he rejected. Following our review, we affirm the post-conviction court's denial of the petition.
Defendant, Phillip Howard White, Jr., was indicted on one count of felony murder and one count of attempted especially aggravated robbery. Following a jury trial, Defendant was found guilty of second degree murder and not guilty of attempted especially aggravated robbery. After a sentencing hearing, the trial court sentenced Defendant to serve twenty-five years. In his appeal, Defendant alleges that (1) the evidence was insufficient to sustain his conviction; (2) the trial court erred in not instructing the jury to refrain from sleeping; (3) the trial court erred in not granting Defendant's request for a continuance because of Defendant's physical appearance at trial; and (4) the trial court erred in sentencing Defendant to twenty-five years. After a careful review of the record in this matter, we affirm the judgment of the trial court.
The Defendant, Ashley Nesbitt, was convicted by a jury of one count of first degree murder, two counts of attempted first degree murder, and one count of aggravated robbery. The Defendant now appeals as of right, challenging the sufficiency of the evidence. Finding the evidence insufficient to support one of the attempted murder convictions, we reverse and dismiss the Defendant's conviction for the attempted first degree murder of Carl Turner. We affirm the remaining convictions.
This appeal arises pursuant to Tenn. R. App. P. 9. The appellant, Darrell Wayne Taylor, seeks interlocutory review of the question of whether a trial court in a post-conviction proceeding involving a capital case is authorized following an ex parte grant of fees for expert services pursuant to Tennessee Code Annotated Section 40-14-207(b), to issue ex parte orders directing the transportation of evidence in state custody to a defense expert for independent forensic tests. After careful consideration of the applicable law, we hold that there is no right on the part of an accused in a criminal case, capital or otherwise, to obtain permission ex parte for independent forensic testing of physical evidence in the custody of the State. However, following an adversarial hearing where both the prosecution and the defense may be heard, the trial judge may grant a defense request for independent testing of such physical evidence under such conditions as the trial court may in its discretion deem appropriate to protect the interests of both parties. Accordingly the judgment of the trial court staying the ex parte order to transport physical evidence for independent testing is affirmed and the case is remanded for further proceedings in accordance with this opinion.
Shelby
Court of Criminal Appeals
State of Tennessee v. Timmy Herndon W2001-02981-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Joseph B. Dailey
In this pro se appeal the appellant, Timmy Herndon, is seeking review of the trial court’s order denying his “Motion to Rectify Clerical Mistakes Pursuant to Rule 36 of the Tennessee Rules of Criminal Procedure.” In that motion the appellant claims that, following his conviction of aggravated robbery, the pre-sentence report prepared prior to sentencing the appellant contained information regarding convictions which should have been “purged” from his criminal history because he had successfully completed some type of diversionary program for those offenses. As a result of this allegedly “improper” information, the appellant claims he was erroneously sentenced as a Range II multiple offender. In addition, he claims that the pre-sentence report with the “purged” convictions is interfering with the appellant’s ability to obtain a favorable security classification within the Department of Correction. The appellant wanted the trial court and now wants this Court to “rectify” the pre-sentence report to delete any reference to these “purged” convictions. We hold that under the circumstances presented, this Court has no jurisdiction to entertain a direct appeal from the denial of a motion filed pursuant to Tennessee Rule of Criminal Procedure 36, and that the circumstances do not warrant granting review by way of certiorari or habeas corpus. Accordingly, the appeal is dismissed.
Shelby
Court of Criminal Appeals
Teresa L. Crisp v. Liberty Mutual Insurance Company M2002-01236-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Billy Joe White, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employee insists the trial court erred in summarily dismissing her claim for insufficient evidence of a connection between the employment and the State of Tennessee. As discussed below, the panel has concluded there is no genuine issue of material fact and that the employee's insurer is entitled to judgment as a matter of law. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and JOHN K. BYERS, SR. J., joined. Michael A. Walker, Jamestown, Tennessee, for the appellant, Teresa L. Crisp Joe M. Looney, Crossville, Tennessee, for the appellee, Liberty Mutual Insurance Company MEMORANDUM OPINION The employee or claimant, Ms. Crisp, initiated this civil action to recover workers' compensation benefits. The employer's insurer, Liberty Mutual Insurance Company, moved for summary judgment of dismissal pursuant to Tenn. Code Ann. _ 5-6-115. The trial court granted the motion. The claimant has appealed. Summary judgment is almost never an option in workers' compensation cases; Berry v. Consolidated Systems, Inc., 84 S.W.2d 445, 446 (Tenn. 1991). However, when there is no dispute over the evidence establishing the facts that control the application of a rule of law, summary judgment is an appropriate means of deciding such issues as whether an action is barred by the applicable statute of limitations or by res judicata; whether a party has standing; or whether the court has jurisdiction. Id at 446. The dispositive issue in this case involves the applicability of a rule of law to undisputed facts. The standard of review on appeal of a grant of summary judgment is de novo upon the record without a presumption of correctness to determine whether the absence of genuine and material factual issues entitle the movant to a judgment as a matter of law. Goodloe v. State, 36 S.W.3d 62, 65 (Tenn. 21) The movant must either affirmatively negate an essential element of the non- movant's claim or conclusively establish an affirmative defense; mere conclusory assertions that the non-movant has no evidence are insufficient; and if the movant does not negate a claimed basis for the suit, the non-movant's burden to produce evidence establishing the existence of a genuine issue for trial is not triggered and the motion for summary judgment must fail. If, however, the movant successfully negates a claimed basis for the suit, the non-movant may no longer simply rely upon the pleadings, but must then establish the existence of the essential elements of the claim or the non- existence of the defense. Finister v. Humboldt General Hosp., Inc., 97 S.W.2d 435, 438 (Tenn. 1998). The claimant entered into a contract of hire with the employer, M & P Utilities, Inc., a Minnesota Corporation, while in the State of Missouri. She worked for the employer in several states before suffering a serious back injury while working in Colorado, where she was hospitalized for five days. She returned to her home state, Tennessee, after leaving the hospital and has received most of her medical care in Tennessee. The claimant rejected an offer to settle her workers' compensation claim under Minnesota law and sued for benefits under Tennessee law. A worker who is injured outside the territorial limits of Tennessee is covered under the Act if, and only if, he or she would have been covered if the injury had occurred within the state and (1) the employment was principally localized within Tennessee or (2) the contract of hire was made in Tennessee. Tenn. Code Ann. _ 5-6-115. Ordinarily, though, if an injury occurs in another state, benefits under the Tennessee Act are not recoverable unless it can be shown that the contract of hire was made in Tennessee. Perkins v. BE & K, Inc., 82 S.W.2d 215, 216 (Tenn. 199). The claimant argues that the statute should be construed to provide coverage under the circumstances of this case because the employer was qualified to do business in Tennessee when she was injured, is a licensed contractor in Tennessee, has had continual workers' compensation insurance in Tennessee since 1996, has bid for jobs in Tennessee for the past several years and the claimant presently works on one of them, has offered Tennessee workers' compensation to its employees injured in Texas, has established an office in Fentress County, the claimant's treating physicians are located in Tennessee, and Liberty Mutual Insurance Company has been providing Tennessee employers with workers' compensation insurance for decades. Under the Tennessee Workers' Compensation Act, the right of an employee who suffers a work-related injury to recover compensation benefits from his employer is governed by the statutes -2-
Fentress
Workers Compensation Panel
Walter H. Denton v. Liberty Mutual Insurance Company E2002-00872-WC-R3-CV
Authoring Judge: Byers, Sr. J.
Trial Court Judge: Jacqueline F. Schulten, 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. The defendant appeals from a judgment in favor of the plaintiff which found the plaintiff's present medical condition and injury to his foot and ankle was a continuation of his original injury which occurred while working for Liberty Mutual's insured, McKeehan Chair Company, and not a new injury within the meaning of the workers' compensation laws of the State of Tennessee. The defendant contends the injury in this case was a new injury or the aggravation of an old injury which occurred as a result of an on the job accident the plaintiff suffered in 1999 while working for Bishop Baking Company, the plaintiff's present employer. The trial judge found the plaintiff's problem was a continuation of the injury received while working for the defendant and ordered the defendant to pay for treatment of the plaintiff's foot. 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 Affirmed BYERS, SR. J., in which ANDERSON, J., and THAYER, SP. J., joined. Ewing Strang, Chattanooga, Tennessee, for the appellant, Liberty Mutual Insurance Company. J. Taylor Walker, Chattanooga, Tennessee, for the appellee, Walter H. Denton. MEMORANDUM OPINION The plaintiff was previously employed by McKeehan Chair Company, whom the defendant insured. On November 21, 1989, the plaintiff was injured in the course of this employment. The plaintiff underwent surgery to his back and left ankle as a result of the injuries he sustained in the accident. The plaintiff and defendant entered into a settlement of the case, which required the defendant to pay medical bills for treatment of these injuries for life. The plaintiff suffered foot drop as a result of the injury and the surgery was to relieve this problem The plaintiff testified that he had had continuing problems with his left foot and ankle from the time of the original injury until and after the accident at Bishop Baking Company, that his left foot had been turning inward during the time between the injury of 1989 and the injury of 1999, and that he did not seek medical care for the problem but coped with it himself. The plaintiff related a history of the left ankle giving way over the years which caused him to fall on many occasions. He testified the accident at Bishop Bakery Company was caused because his foot gave way. The medical evidence in this case was submitted by various medical reports and records and by the testimony of Dr. John Henry Chrostowski, an orthopaedic surgeon. Dr. Chrostowski testified this concerning the plaintiff's foot problem: I think the neuropathy of the loss of sensation including protective sense laterally has led to this problem. The gross deformity is clearly a result of neurologic injury or back problems from the past. * * * It seems fairly straight forward to me that his injury is clearly neurogenic in origin at this point. He has had ankle sprains in the past, but that the reason his foot has progressively deformed and basically rotated off with the inversion is because of the neurologic injury and loss of function of the evertors of the foot and ankle. If the damage to his spine which led him to have a permanent nerve injury was part of his injury in 1989, I believe that to be the most causative factor today. Certainly, the ankle sprains that he has had in the past play a role in this, but also that he was likely to be prone to those ankle sprains or predisposed to them by the loss of the muscular evertor function, which are the dynamic stabilizers of the ankle. Dr. Chrostowski testified the accident at Bishop Baking Company made the previous injury worse. The defendant asserts that the medical records of doctors who previously treated the plaintiff showed that the plaintiff had no problem with his foot and ankle for some eight or nine years prior to the accident at Bishop Baking Company. The plaintiff testified that he continued to have difficulty with his ankle and foot from the date of the original injury until the event at the baking company. The resolution of this matter rested upon all of the evidence - medical and lay, oral and by -2-
Knox
Workers Compensation Panel
La-Z-Boy, Inc., v. Patricia Van Winkle E2002-01423-WC-R3-CV
Authoring Judge: John K. Byers, Sr.J.
Trial Court Judge: J. Curtis Smith, 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 case, the employer, La-Z-Boy, Inc., filed suit to resolve a workers' compensation dispute between La-Z- Boy, Inc., and Patricia Van Winkle, its employee. The trial court found the defendant sustained a one percent medical impairment to her left arm as a result of carpal tunnel syndrome and awarded her fifty percent disability to her left arm. The court found the defendant suffered no disability to the right arm as a result of carpal tunnel syndrome. The employer appealed the judgment and avers the trial court award is excessive based upon the medical evidence in this case. The employee asserts the trial court should have found her to be one hundred percent disabled based upon the evidence in the case. Further, the employee argues that the trial judge erroneously allowed an occupational therapist to give opinions on medical matters which were beyond his field of expertise. We reverse the judgment in this case and remand the case to the trial court for further proceedings. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Reversed and Remanded JOHN K. BYERS, SR.J., in which E. RILEY ANDERSON, J., and ROGER E. THAYER, SP.J., joined. David C. Nagle, Chattanooga, Tennessee, for the appellant, La-Z-Boy, Inc. Michael A. Wagner, Chattanooga, Tennessee, for the appellee, Patricia Van Winkle. MEMORANDUM OPINION There is no dispute concerning the fact that the employee developed carpal tunnel syndrome in each arm while employed by La-Z-Boy, Inc., and that carpal tunnel surgery was performed on each arm - the left on January 19, 21, and the right on February 2, 21. We do not believe it is necessary to go into great detail concerning the medical evidence in this case. Rather, we focus on the reasoning of the trial court in the acceptance of the evidence presented by La-Z-Boy, Inc. over the evidence presented by the employee. The evidence of physicians was introduced by way of standard C-32 medical reports. These consisted of a report by a Dr. Walwyn, filed by the employee, and a report of a Dr. Boyd, filed by the employer. According to the reports introduced at trial, Dr. Walwyn examined the employee on October 22, 21. His report found the employee retained an eight percent impairment rating. The report noted he reviewed an EMG report but did not state the date upon which the test was performed. The report also included the results of an April 2, 21 physical capacity evaluation, and his examination of the defendant. Dr. Boyd spent one and one-half hours with the employee. She reviewed the operating physician's notes, physical therapy reports, and nerve conduction studies which were performed in November of 21 and September of 21. Dr. Boyd found the employee sustained a one percent impairment to her left arm and no impairment to the right arm. La-Z-Boy, Inc. called Brian Laney, an occupational therapist, to testify. Mr. Laney has a bachelors degree in occupational therapy from the Medical College of Georgia. He testified he conducted a test on the employee to determine her ability to perform tasks but that the test was less than successful because of the employee not fully cooperating during the test. Mr. Laney was asked about two functional capacity evaluations performed on the employee - one in April of 21 and one in September of 21. He said: The first thing that caught my eye whenever I finished my FCE and later found out that Gail had performed a former FCE, her surgical procedures, I believe, were a week apart, carpal tunnel release on the right and carpal tunnel release on the left. The purpose for a carpal tunnel release is to relieve pressure on the nerve that's traveling through that carpal and comes down. I'm not sure what complaints she had that necessitated her having the surgery, but generally people have tingling and numbness, which is hopefully relieved with the release. I believe it's in the notes that she did say the numbness and tingling had decreased after the surgery. When someone has release done, you don't expect immediate relief. Mr. Laney further testified: A nerve regenerates or heals at approximately _ in a distal extremity of about one inch per month, therefore, you're looking at about six months of healing time in -2-
Knox
Workers Compensation Panel
City of Red Bank, Tennessee, et al. v. Kimilla R. Cofer E2002-00192-WC-R3-CV
Authoring Judge: Byers, Sr. J.
Trial Court Judge: Jackie Schulten, 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 City of Red Bank brought this suit against Kimilla Cofer, a police officer, to determine if it was liable under the provisions of the Workers' Compensation Act for injuries sustained by her in an automobile accident. The trial court found the injuries suffered by Cofer did not arise out of or in the course of her employment with the City. 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 Affirmed BYERS, SR. J., in which ANDERSON, J. and THAYER, SP. J., joined. W. Gerald Tidwell, Jr., Chattanooga, Tennessee, for the appellant Kimilla R. Cofer. David R. Hensley, Chattanooga, Tennessee, for the appellees, City of Red Bank, Tennessee and Tennessee Municipal League Risk Management Pool. MEMORANDUM OPINION Officer Kimilla R. Cofer was a police officer with the City. She was assigned by the City as the D.A.R.E. (Drug Abuse Resistance Education) Officer and she also performed normal patrol duty. Officer Cofer taught D.A.R.E. classes at three schools. In addition to teaching these classes, she would attend D.A.R.E. functions away from the school. If she attended D.A.R.E. functions outside the time of her normal duty hours, she would receive compensated time off instead of payment. On March 6, 1997, Officer Cofer worked her regular shift from 7: a.m. until 3: p.m. When she finished her shift, she drove to her home, donned a D.A.R.E. shirt, and waited for a skating party sponsored by the D.A.R.E. group to start. She left her home driving her own car, and was driving to the event when she was involved in an accident.1 There was evidence in the record that Cofer was expected to attend social functions of the students in the D.A.R.E. program such as the skating event on the day of the accident. She was permitted to drive a D.A.R.E. vehicle which was under the control of the city after her shift to these events if she obtained permission from her superior for its use. However, at the time of the accident she was driving her own vehicle. Cofer acknowledges that as a general rule an employee is not acting within the course of her employment unless the injury occurs on the employer's premises. Howard v. Cornerstone Medical Associates, 54 S.W.3d 238 (Tenn. 21); Lollar v. Wal-Mart Stores Inc., 767 S.W.2d 143 (Tenn. 1989). Under the holdings in these cases, an employee driving to her place of employment is not in the course of her employment. Cofer insists, however, that she as a police officer is always on duty because officers often make arrests or engage in other police-type investigations, etc,. while off duty. She relies on the cases of City of Gallatin v. Anderson, 354 S.W.2d 84 (Tenn. 1962), and Mayor and Alderman of the Town of Tullahoma v. Ward, 114 S.W.2d 84 (Tenn. 1938), in support of this position. We do not find these cases to support Cofer's claim for compensation. In Ward, the officer was walking along a street in Tullahoma on his way to his home. He was in uniform and carrying a weapon at the time. Ward was run down by a drunken driver. Ward later found and arrested the driver. The court held that Ward was in the course of his employment at the time because he was on the streets of his employer at the time and as such was entitled to coverage under the Workers' Compensation Act. The court's rationale was that Ward was on the premises of his employment, and still under all the obligations of his employment, in uniform, carrying his badge and weapon of office. The court concluded that because of this, Ward was patrolling the streets at the time and his destination was not controlling. In Anderson, the officer was off duty and on a personal mission. He attempted to make an arrest and was injured. The court held that the evidence showed that Anderson was acting in his capacity as an officer at the time of the injury. In this case, Cofer was not traveling on the streets of the city. She was not in uniform, she 1 The defendant received injuries in the accident but these are not at issue at this time in this case. -2-
Knox
Workers Compensation Panel
Cynthia Ellen Walker v. Advance Transformer Company, E2001-03074-WC-R3-CV
Authoring Judge: Howell N. Peoples, Special Judge
Trial Court Judge: Frank V. Williams, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e) for hearing and reporting of findings of fact and conclusions of law. The Second Injury Fund claims the trial court erred (1) in failing to make specific finding of the extent of the employee's disability attributable to a scheduled member as a percentage of her total disability, and (2) by ordering the Second Injury Fund to pay permanent and total disability benefits to age 65 after the employer paid 6 weeks of benefits for the injury to a scheduled member. We modify in part, reverse in part and remand. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Morgan County Chancery Court is modified in part and reversed in part. HOWELL N. PEOPLES, SP. J., in which WILLIAM M. BARKER, JUSTICE, and JOHN K. BYERS, SR. J., joined. Paul G. Summers, E. Blaine Sprouse, Nashville, Tennessee, for the Appellant, The Second Injury Fund. Arthur G. Seymour, Robert L. Kahn, Frantz, McConnell & Seymour, LLP, Knoxville, Tennessee, for the Appellee, Advance Transformer Company and The Travelers Indemnity Company. 1 MEMORANDUM OPINION Facts Cynthia Ellen Walker injured her left arm on June 27, 2 in the course and scope of her employment with Advance Transformer Company ("Advance"). Ms. Walker had pre- existing work-related and non-work related medical conditions, and the arm injury resulted in her permanent, total disability. Ms. Walker had received a worker's compensation award in 1993 of 2 percent to both arms for bilateral carpal tunnel syndrome. In 1998, she received a 1.85 permanent partial disability settlement for a 1996 injury to her left shoulder. She had undergone several other surgeries, including two cervical operations and two knee surgeries. Dr. Michael A. McKay treated Ms. Walker for the left arm injury, diagnosed as a fractured distal radius extending into her wrist joint. He assigned a 15 percent medical impairment to the left upper extremity, which translates to nine percent whole body impairment under the AMA Guides. Dr. Rodney Caldwell, Ph.D., a vocational expert, testified that Ms. Walker was already 55-6 percent vocationally disabled when she sustained the June 27, 2 injury. The trial court found that the case was governed by Tenn. Code Ann. _ 5-6-28 (a)(1). It found Ms. Walker to be permanently totally disabled and fixed the vocational disability for the injury to the left arm at 3 percent. It ordered the employer, Advance, to pay 3 percent of 2 weeks, or 6 weeks of benefits, for the left arm injury, and the remaining balance of the total disability award to be paid to age 65 by the Second Injury Fund ("Fund"). Standard of Review The standard of review in a worker's compensation case 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)(2). Questions of law are reviewed de novo without a presumption of correctness. Smith v. U.S. Pipe & Foundry Co., 14 S.W. 3d 739, 742 (Tenn. 2) Issues 1. Did the trial court err in failing to make a determination of the percentage of vocational disability attributable to Ms. Walker's last injury as a percentage of her total disability? 2. Did the trial court err in failing to properly apportion liability for Ms. Walker's permanent total disability? 2
We granted the employer's motion for full court review in this case in order to decide whether the failure to file the statistical data ("SD1") form contemporaneously with the order of final judgment, as required by Tennessee Code Annotated section 50-6-244(b) (1999), affects the finality of that judgment. After a thorough review of the record and careful consideration of relevant authorities, we have determined that the failure to file the SD1 form contemporaneously with the order of final judgment does not affect the finality of the judgment. Accordingly, we agree with the Special Workers' Compensation Appeals Panel in its dismissal of the appeal as untimely because as it was not filed within the time prescribed by Rule 4 of the Tennessee Rules of Appellate Procedure.
Knox
Supreme Court
Dee Ann Gallaher v. Curtis J. Elam E2000-02719-SC-R11-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge Carey E. Garrett
In this appeal, the appellant challenges the constitutionality of the Tennessee Department of Human Services Child Support Guidelines ("the Guidelines"). The Court of Appeals upheld the trial court's determination that chapter 1240-2-4-.03(4) of the Guidelines violates the equal protection provisions of the federal and state constitutions. We granted permission to appeal. After careful consideration, we conclude that: (1) chapter 1240-2-4-.03(4) of the Guidelines, which prohibits consideration of non-court-ordered child support in calculating child support, and chapter 1240-2-4-.03(2) of the Guidelines, which requires consideration only of the obligor's income in calculating child support, do not violate the equal protection and due process provisions of either the United States or Tennessee Constitutions; and (2) the promulgation of the Guidelines does not constitute an impermissible delegation of rulemaking authority by the General Assembly to the Department of Human Services. We reverse the judgment of the Court of Appeals and remand the cause for proceedings consistent with this opinion.
We granted the plaintiff's motion for review as provided by Tennessee Code Annotated section 50-6-225(e) (1999 & Supp. 2002) to determine whether a trial court may reconsider an award pursuant to Tennessee Code Annotated section 50-6-241(a)(2) (1999) when an employee resigns and, if so, under what circumstances may the prior award be increased. After receiving a workers' compensation award and returning to his pre-injury employment, Rodney R. Hardin voluntarily resigned. Thereafter, he filed a motion requesting that the trial court reconsider his award. The trial court granted this motion and increased the plaintiff's award by 15%. The Special Workers' Compensation Appeals Panel held that, while a trial court may reconsider a previous workers' compensation award when the employee resigns, it may increase the award only if the resignation was reasonably related to the injury. The Panel found that Hardin's resignation was not reasonably related to his injury and, therefore, reversed the trial court's increase of the award. We agree with the Panel's reasoning and its conclusion.
