McLane Co. v. State M2002-00838-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Irvin H. Kilcrease, Jr.
Licensed wholesale tobacco distributor filed petition against the State seeking the disclosure of identities of all licensed tobacco wholesale distributors in the State of Tennessee pursuant to the provisions of the Tennessee Public Records Act. State opposed petition on the grounds that disclosure of this information was controlled by the taxpayer confidentiality provisions of the revenue statutes. Chancery Court granted petition and ordered disclosure of the names and addresses of all licensed wholesale tobacco distributors in Tennessee but, on the state's motion, stayed its order pending appeal. State appeals. We reverse and dismiss.
Davidson
Court of Appeals
State v. Phillip Wilcox M2002-00667-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: L. Craig Johnson
The defendant contends the trial court erred in revoking his probation. He claims the trial court improperly considered evidence of probation violations, because he was not given proper notice of the violations by the probation revocation warrant. He further claims that the evidence adduced at the probation revocation hearing was insufficient to revoke his probation. The trial court heard evidence of probation violations that were not included in the probation warrant, but the trial court specifically stated it did not consider such evidence in revoking the defendant's probation. Because sufficient evidence exists to prove the defendant violated Rule One of his Rules of Probation, we affirm the judgments of the trial court.
Brenda Barton v. Anvil International, Inc., W2001-02523-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Joe C. Morris, 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 employer insists (1) the trial court erred in considering an examining physician's opinion as not being based on statutory guidelines and (2) the award of permanent partial disability benefits based on 5 percent to one arm and 45 percent to the other arm is excessive.1 As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and MICHAEL MALOAN, SP. J., joined. Jeffery G. Foster, Jackson, Tennessee, for the appellant, Anvil International, Inc. Scott G. Kirk, Jackson, Tennessee, for the appellee, Brenda Barton MEMORANDUM OPINION The employee or claimant, Ms. Barton, initiated this civil action to recover workers' compensation disability benefits for a work-related injury. The employer, Anvil International, denied liability for permanent disability. After a trial on the merits, the trial court awarded, among other things, benefits based on permanent partial disability to both arms. The employer has appealed. 1 An injury to both arms is a scheduled injury and the better practice is to average the awards to each arm for a single award base d on a per centage of b oth arm s. Scales v. City of Oak Ridge, 53 S.W .3d 649 at n. 1 (Tenn. 2 1). Th e issue d eem ed w aived since it wa s not raised in this a ppe al. For injuries occurring on or after July 1, 1985, appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2) (21 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Chester
Workers Compensation Panel
Donna Hardey v. Pml, Inc., Ebi Companies and James W2001-02569-WC-R3-CV
Authoring Judge: W. Michael William Michael Maloan, Special Judge
Trial Court Judge: Julian P. Guinn, 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. _5-6-285 (e)(3) for hearing and reporting to the Supreme Court of findings and fact and conclusions of law. In this appeal the plaintiff, Donna Hardey (Hardey) contends the evidence preponderates in favor of an award in excess of the twenty-five percent (25%) permanent partial disability to the body as a whole awarded by the trial court. For the reasons stated in this opinion, we affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed W. MICHAEL MALOAN, SP. J., in which JANICE M. HOLDER, J. and JOE C. LOSER, JR., SP. J., joined. Ricky L. Boren, Jackson, Tennessee, for the appellant, Donna Hardey. Jeffrey G. Foster, Jackson, Tennessee, for the appellee, PML, Inc. and EBI Companies. E. Blaine Sprouse, Nashville, Tennessee, for the appellee, Tennessee Department of Labor, Workers' Compensation Division MEMORANDUM OPINION The plaintiff, Hardey, was forty (4) years old at trial. She completed the eleventh (11th) grade and obtained a general equivalency diploma. Her work history is mostly manual labor in factories. She began working for PML in November 1994 as a welding machine operator until she was promoted to a group leader. As group leader she was responsible for assigning operators to presses and overseeing their operation. In July 1997 Hardey hurt her neck at PML. Dr. Glenn Barnett diagnosed a herniated C6 disc on the left and on January 26,1998 he performed an anterior cervical discectomy and fusion of the C6-7 discs. She filed a workers' compensation claim which was ultimately settled on January 8, 1999, for twenty percent (2%) permanent partial disability to the body as a whole. Hardey returned to work at PML as a group leader without restrictions. Hardey began to have problems with her right shoulder and arm and returned to see Dr. Barnett on June 25, 1999. Dr. Barnett determined that she had a C5 herniated disc. On October 14, 1999, Dr. Barnett performed as a second operation a discectomy and fusion at the C5-C6 level. As a result of this second surgery, Dr. Barnett assigned an additional five percent (5%) permanent impairment and advised Hardey not to lift in excess of thirty (3) pounds on a regular basis. In June 1999, Hardey complained to Dr. Barnett of right arm and finger numbness. A nerve conduction study showed mild to moderate carpal tunnel syndrome of the right arm. Dr. Barnett did not recommend surgery for this condition. When Dr. Barnett saw Hardey on February 7, 22, he noted she was doing "miserably, was quite uncomfortable, and taking up to fourteen Tylenol per day." Dr. Barnett testified it was not likely she would be able to return to work "unless she gets a dramatic improvement with her nonsurgical treatment of her pain." Due to her chronic pain, Dr. Barnett referred Hardey to Dr. Frank Jordan, a pain specialist. Dr. Jordan saw her on August 22, 21, diagnosed radicular pain, prescribed medication and performed two (2) epidural blocks. Hardey testified she did not get any relief from Dr. Jordan's treatment. Dr. Joseph Boals examined Hardey for an independent medical evaluation on October 3, 2. On examination, Dr. Boals found extensive loss of motion in her neck, hypesthesia in the last three (3) fingers of her right hand, and a positive Phalen's test on the right arm. He assigned a ten percent (1%) permanent impairment for each cervical surgery and an additional ten percent (1%) for chronic pain syndrome. Dr. Boals assigned an additional ten percent (1%) permanent impairment for the carpal tunnel syndrome. As a result of both injuries and surgeries to her neck and her carpal tunnel syndrome, Dr. Boals recommended she not go back to manual labor employment. Her restrictions include no overhead work, no work away from her body, and a weight limit of less than twenty (2) pounds with no repetitive work using her hands or heavy gripping using her hands, and she is suited to only sedentary or light work status. -2-
Benton
Workers Compensation Panel
Sandra Kay Powers, et al. v. American Interstate Insurance Company, et al W2001-02751-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
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. _ 5-6-225(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 competent evidence preponderates against the trial court's finding that the deaths of two employees occurred in the course of their employment and in favor of a finding that the employees had materially deviated from their employment at the time of their deaths in a vehicular accident. As discussed below, the panel has concluded the judgment of the trial court should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and W. MICHAEL MALOAN, SP. J., joined. Stephen Craig Kennedy, Selmer, Tennessee, for the appellants, Staton's Home Furnishings and American Interstate Insurance Company Art D. Wells, Jackson, Tennessee, for the appellee, Sandra Kay Powers, as guardian and next friend of Jessica Witherspoon, Billy Joe Witherspoon and Cody Witherspoon, minor children of David Witherspoon, deceased Gayden Drew, Jackson, Tennessee, for the appellee, Robbie McEwen, administrator of the Estate of Timothy Gallimore, deceased MEMORANDUM OPINION By these consolidated civil actions, the claimants sued to recover workers' compensation benefits, as provided by the Workers' Compensation Act, Tenn. Code Ann. _ 5-6- 11 et seq, for the accidental deaths of David Witherspoon and Charles Timothy Gallimore on July 29, 1999. The employer, Staton's Home Furnishings, and its insurer, American Interstate Insurance Company, denied liability. After a trial on the merits, the trial court awarded death benefits to the estate of Gallimore and dependents' benefits to the children of Witherspoon. The employer and its insurer have appealed. For injuries occurring on or after July 1, 1985, appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2) (21 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
A jury convicted the Defendant of aggravated robbery and attempted robbery. The trial court sentenced the Defendant to an effective nine-year term. The Defendant appealed, and our Court affirmed the case in part, but remanded the case in part for the trial court to determine whether the Defendant's right to a speedy trial was violated. On remand, the trial court found that the Defendant's right to a speedy trial had not been violated. The Defendant now appeals from the trial court's order denying his motion to dismiss for a violation of his right to a speedy trial. Finding no error, we affirm the judgment of the trial court.
Knox
Court of Criminal Appeals
Rose Warnick vs. Carter County E2002-00833-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Jean A. Stanley
This is a negligence action filed by Rose F. Warnick against Carter County ("the County") seeking damages for personal injuries arising out of an automobile accident involving the plaintiff and Keith G. Range ("Deputy Range"), a Carter County deputy sheriff, who, according to the complaint, was "acting within the course and scope of his authority as an agent, servant and employee of" the County at the time of the accident. The County filed a motion to dismiss pursuant to Tenn. R. Civ. P. 12.02(6). The trial court dismissed the plaintiff's complaint, holding that it was not filed within one year of the accident as required by the Governmental Tort Liability Act ("the GTLA"). We affirm.
Carter
Court of Appeals
Sandra Sparkman & Joe Sparkman vs. Bluecross Blueshield E2002-00932-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Samuel H. Payne
Plaintiffs' action was dismissed by the Trial Court on the grounds plaintiffs failed to exhaust administrative appeals. On appeal, we Vacate and Remand.
Hamilton
Court of Appeals
John Garland vs. Tonia Garland E2002-00949-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: James W. Mckenzie
In this divorce action, the wife appeals the alimony award and amount of attorney's fees awarded to her. On appeal, we Affirm as Modified.
Pursuant to a plea agreement, the Defendant pled guilty to theft under $500 and to violating an habitual traffic offender order. She entered Alford pleas to possession of marijuana with intent to sell, possession of drug paraphernalia, and two counts of contributing to the delinquency of a minor. Her total effective sentence was two years as a Range I standard offender plus eleven months and twenty-nine days on supervised probation. The manner of service of the two-year sentence was to be determined by the trial court following a sentencing hearing. The trial court denied alternative sentencing and ordered the Defendant to serve the entire two years in the Tennessee Department of Correction. In this appeal, the Defendant argues that the trial court erred in failing to impose an alternative sentence. Concluding that the record supports the trial court's denial of alternative sentencing, we affirm the judgments of the trial court.
Sullivan
Court of Criminal Appeals
Edward Howell vs. NHC Healthcare E2002-01321-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Harold Wimberly
The Trial Court refused to enforce an Agreement for Mediation and Arbitration. On appeal, we Affirm.
Knox
Court of Appeals
Teresa Malone vs. Shane Maddox E2002-01403-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: W. Neil Thomas, III
This case focuses on an insurance company's liability under the uninsured motorist ("UM") provisions of an automobile insurance policy. It arises out of an automobile accident involving Teresa Malone ("the policyholder") and Shane Maddox ("the uninsured motorist"). The policyholder appeals the trial court's judgment decreeing that the policyholder's uninsured motorist carrier, Harleysville Mutual Insurance Company ("the UM carrier"), cannot be held liable for prejudgment interest under the facts of this case because such an award would cause the total judgment against the UM carrier to exceed the UM coverage limit in the policy. We affirm.
Hamilton
Court of Appeals
E2002-01703-COA-R3-CV E2002-01703-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Telford E. Forgerty, Jr.
Sevier
Court of Appeals
Pigeon Forge vs. William Loveday E2002-00643-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Richard R. Vance
Landowner seeks a new trial in eminent domain case on grounds that the Trial Court admitted in evidence the price paid for the land 19 years earlier. We reverse the Trial Court's Judgment.
Defendant, Darren A. Dewalt, appeals as of right from the trial court's order revoking his probation and reinstating his original sentence to be served in the Shelby County Correction Center. Defendant contends that the trial court erred by revoking his probation based upon an unidentified and unsubstantiated laboratory report indicating that Defendant had used drugs in violation of his probation. Based upon a review of the entire record, we affirm the judgment of the trial court.
Shelby
Court of Criminal Appeals
Harold J. Garth v. Siskin Steel & Supply Company, E2002-00090-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: W. Frank Brown, III, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann._ 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found the plaintiff suffered 75 percent disability to his right hand as a result of an on-the-job injury, which occurred on March 1, 2. The defendant says the trial judge erred in not finding the plaintiff's recovery for the injury should be limited to the thumb or the first phalange of the thumb. The plaintiff says the trial court properly found the plaintiff suffered an impairment to his right hand but says the trial court should have granted a higher award. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed JOHN K. BYERS, SR. J., in which WILLIAM M. BARKER, J. and JOSEPH M. TIPTON, SP. J., joined. Kent T. Jones, Chattanooga, Tennessee, attorney for appellant, Randstand Staffing Services. David D. Moore, Chattanooga, Tennessee, attorney for appellant, Siskin Steel & Supply Company. Richard H. Winningham, Chattanooga, Tennessee, attorney for appellee, Harold J. Garth. MEMORANDUM OPINION Plaintiff, Harold Garth, is a high school graduate with vocational training as a bricklayer. After serving in the military, he attended Draughon's Junior college where he received a degree or diploma in trucking and has past experience in both trucking and construction. The undisputed evidence shows the plaintiff sustained an injury to his right thumb or hand on March 1, 2 while working as a materials handler with Siskin Steel & Supply Company through Randstad Staffing Services.1 Medical Evidence Dr. Daniel Labrador, Jr., a plastic surgeon, saw the plaintiff at the emergency room on March 1, 2, shortly after he was injured. He testified that the tip of the plaintiff's right thumb had been torn off. The portion of the thumb was reattached to the plaintiff's thumb and treatment began. Dr. Labrador saw the plaintiff on several occasions and last saw him on April 3, 2. Dr. Labrador denied that the plaintiff's hand injury had developed gangrene. Dr. Labrador concluded that the plaintiff's injury had healed on April 2, 2, and testified the plaintiff sustained a 1 percent permanent medical impairment to his right thumb. Dr. Labrador testified he was somewhat limited in his finding because Mr. Garth did not return for a final appointment after April 3, 2.2 Dr. Robert Mastey, a hand and upper extremities specialist, saw the plaintiff on July 27, 21 at the request of the defendant for purposes of evaluation. He found the plaintiff had no bone loss and had normal nerve function in the hand, which was based upon a review of an EMG and CV done previously. He also found the plaintiff had loss of motion in the thumb and loss of digital height. Dr Mastey determined the plaintiff had sustained a 14 percent medical impairment to the right thumb. Dr. Mastey did not consider a loss of grip finding because he felt it was unreliable.3 Dr. Cauley W. Hayes, a hand surgeon, saw the plaintiff on April 6, 2. He testified that the tip of the plaintiff's thumb had been amputated (soft tissue), that the soft tissue had been reattached and that the wound had become necrotic and gangrenous. Dr. Hayes found the plaintiff's right thumb was numb almost past the metacarpal phalange joint and that the plaintiff was experiencing swelling of the hand. Dr. Hayes opined the plaintiff would have a permanent partial medical impairment of 33 percent to his hand, with loss of motion and "fine manipulation." Lay Testimony The plaintiff and other witnesses testified at trial that his right hand continues to swell. On two occasions the plaintiff exhibited his hand to the trial judge for observation, once at the request of counsel and once at the request of the trial judge. The only response by the judge on these 1 Randstad Staffing and Siskin Steel stipulated at trial that Randstad was the actual statutory employer of the plaintiff at the time of the alleged injury and, by agreement, Randstad Staffing Services took on sole responsibility for the jud gme nt. 2 The plaintiff testified he did not return to Dr. Labrador because his finger was swollen and infected and he did not think he was being properly treated. 3 Dr. Mastey appeared antagonistic to questions from plaintiff's counsel and also interjected his legal opinion into his testim ony b y citing a co mpe nsation decisio n by the Sup reme Court. -2-
Knox
Workers Compensation Panel
Hershel Willard Hill v. Wilson Sporting Goods Co., M2001-02820-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Jeffrey F. Stewart, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) (22 Supp.) for hearing and reporting of findings of fact and conclusions of law. The trial court ruled as a matter of law that the employee's request for reconsideration under Tenn. Code Ann. _ 5-6-241(a)(2) (21 Supp.) was barred because (1) his initial award was below the two and one-half times multiplier cap and (2) his employment was not terminated. The employee contends that the trial court erred on both grounds. As discussed below, the panel has concluded that _ 5-6-241(a)(2) requires neither a capping at two and one-half times the initial award nor a termination. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Chancery Court Vacated and Remanded JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and JAMES L. WEATHERFORD, SR. J., joined Russell D. Hedges, Moore & Hedges, Tullahoma, Tennessee, for the appellant, Hershel Willard Hill Edward A. Hadley, Gideon & Wiseman, Nashville, Tennessee, for the appellees, Wilson Sporting Goods Company and Kemper Insurance Company MEMORANDUM OPINION Pursuant to Tenn. Code Ann. _ 5-6-241(a)(2), the employee or claimant, Hershel Hill, initiated this civil action for reconsideration of a previous award of permanent partial disability benefits for injuries suffered in a work-related accident on April 23, 1997. After a hearing, the trial court disallowed reconsideration because (1) the previous award was less than two and one-half times the highest impairment rating and (2) the claimant had not been discharged by the employer. The claimant has appealed. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2) (21 Supp.). Conclusions of law are subject to de novo review on appeal without any presumption of correctness. Nutt v. Champion Intern. Corp., 98 S.W.2d 365, 367 (Tenn. 1998). Issues of statutory construction are solely questions of law. Bryant v. Genco Stamping & Mfg. Co., 33 S.W.3d 761, 765 (Tenn. 2). Workers' compensation laws must be construed so as to ensure that injured employees are justly and appropriately reimbursed for debilitating injuries suffered in the course of service to the employer. Story v. Legion Ins. Co., 3 S.W.3d 45, 454 (Tenn. 1999). Mr. Hill worked for the employer, Wilson Sporting Goods, for more than thirty years until his retirement in 1999. On April 23, 1997, he had a collision with an electric cart at work. The resulting back injury was initially treated by Dr. Richard A. Bagby and Dr. Robert M. Dimick. Both physicians assigned a zero permanent impairment rating for the claimant's injury. A third physician, Dr. Richard Fishbein, evaluated the claimant and assigned a permanent impairment rating of five percent to the whole person. On May 5, 1997, the claimant returned to his job at Wilson at a wage equal to or greater than his wage before the injury. Accordingly, by Tenn. Code Ann. _ 5-6-241(a), his potential permanent disability award was limited to two and one-half times his medical impairment rating. On October 23, 1998, the trial court awarded benefits based on 7.5 percent permanent partial disability to the body as a whole, or one and one-half times the impairment rating assigned by Dr. Fishbein. In the year that followed, the claimant continued to work at Wilson while suffering from back pain. His last day at work was October 26, 1999, after which he took sick leave. On October 27, 1999, he visited Dr. Paul McCombs, who informed Mr. Hill that surgery was not an option for his back condition. With the assistance of Dr. McCombs, the claimant obtained social security disability benefits. He also retired from Wilson under its disability plan. At the trial of this cause, the claimant testified that the pain in his back worsened in the time following the first hearing, but the nature of the pain did not change. The trial court declined the invitation to reconsider Mr. Hill's claim based on two independent and unrelated grounds. First, the court held that reconsideration was appropriate only where the initial award was capped by the two and one-half multiplier limit. Second, the court held that an employee must be terminated in order to be eligible for reconsideration of the initial award. Thus, the trial court concluded, because the initial award was less than two and one-half times Dr. Fishbein's rating and the claimant had not been terminated, Mr. Hill's application for reconsideration was rejected as a matter of law. According to Tennessee Code Annotated section 5-6-241(a)(1), [f]or injuries arising on or after August 1, 1992, in cases where an injured employee is eligible to receive any permanent partial disability benefits, pursuant to _ 5-6-27(3)(A)(i) and (F), and the -2-
Wilson
Workers Compensation Panel
Dexter Lebron Joshen v. Mckee Foods Corporation E2002-00194-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: W. Frank Brown, III, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann._ 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trail court found the plaintiff had sustained a compensable injury to his shoulder and fixed an award of 3 percent vocational disability to the body as a whole. The defendant says the trial judge fixed this award on the basis of a 6 percent medical impairment to the body rather than on the basis of 4 percent medical impairment, which the defendant asserts is the correct medical impairment rating. The plaintiff responds to the defendant's claim by saying he is satisfied by the ruling of the trial court on the award to the plaintiff. However, the plaintiff says if we reverse the trial court's judgment he wishes us to address the four assignments of error raised by him. These assignments concern the treatment of the plaintiff by a Dr. Alan Odom, who did surgery on the plaintiff's shoulder. The trial court found the treatment by Dr. Odom was not shown to be related to the compensable injury the plaintiff suffered while working for the defendant. We affirm the judgment of the trial court.1 Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed JOHN K. BYERS, SR. J., in which WILLIAM M. BARKER, J. and HOWELL N. PEOPLES, SP. J., joined. Charles D. Lawson and J. Barlett Quinn, Chattanooga, Tennessee, attorneys for appellant, McKee Foods Corporation. Gary W. Starnes, Chattanooga, Tennessee, attorney for appellee, Dexter Lebron Joshen. 1 We will not discuss the issues raised by the plaintiff other than to say the record supports the action of the trial judg e in ruling on D r. Od om's tre atment of the p laintiff. MEMORANDUM OPINION At the time of this trial, the plaintiff was thirty-eight years of age. He is a high-school graduate and has no post high school education, vocational or academic. He is married and the father of a child who was seventeen at the time of trial. For the most part the plaintiff's work history shows him to have been employed in low paying jobs such as a busboy and dishwasher, work as a brick mason during high school and as a cook in a restaurant. The plaintiff became employed by the defendant in 1985, and continued in this job until May 17, 1999. The plaintiff's job required him to remove cartons from a conveyor and stack them into a trailer (truck) for delivery. This required lifting, turning and reaching above the shoulders. There is no dispute that the plaintiff injured his right arm and shoulder on May 17, 1999 in the course of doing the stacking required by his job. Medical Evidence 2 Dr. Dennis Lee Stohler, an orthopaedic surgeon, first saw the plaintiff on June 11, 1999. He diagnosed the plaintiff's condition as a result of the injury as left rotator cuff tendinitis with subacromial bursitis with mild left biceps tendinitis. Dr. Stohler treated the plaintiff and determined he had reached permanent medical impairment of 1 percent to the upper extremity, which in medical jargon encompasses the shoulder, which we consider a part of the whole body. He converted this to 6 percent medical impairment to the body as a whole. Dr. Stohler testified that a clinical examination showed that the plaintiff's range of motion had improved by December 21, 1999. He testified that if there had been improvement the original assessment of 6 percent "can be certainly [inaccurate] in that original impairment." Upon being further questioned about the range of motion, Dr. Stohler testified it would reflect a 4 percent whole body impairment. Dr. Stohler based this evaluation on the 4th Edition of the AMA Guidelines. Upon further questioning, Dr. Stohler testified he did not give any consideration for pain in reaching his evaluation. The evidence shows the plaintiff continued to suffer pain and the 4th Edition considers pain as pertinent in fixing the extent of medical impairment from an injury. Discussion There is little discussion needed in this case. The only question is whether the trial court should have found the medical impairment was 6 percent or 4 percent to the body as a whole. 2 We will not discuss the testimony of Dr. Odom because Dr. Odom testified the injury he treated could not have been cause d by the M ay 17 , 199 9 injur y. -2-
Knox
Workers Compensation Panel
Charles Juricak v. Exclusively Temporary, Inc., M2001-03101-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., 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 Second Injury Fund (the fund) questions the competency and sufficiency of a Stipulation of Settlement from another state to permit recovery from the fund. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Criminal Court Affirmed JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and WILLIAM H. INMAN, SR. J., joined. Paul G. Summers, Attorney General and Reporter, and E. Blaine Sprouse, Assistant Attorney General, Nashville, Tennessee, for the appellant, James Farmer, Director, Division of Workers' Compensation, Tennessee Department of Labor and Workforce Development, Second Injury Fund B. Keith Williams, Lebanon, Tennessee, for the appellee, Charles Juricak D. Brett Burrow, Brewer, Krause & Brooks, Nashville, Tennessee, for the appellees, Exclusively Temporary, Inc. and Zurich American Insurance Company MEMORANDUM OPINION The employee or claimant, Mr. Juricak, initiated this civil action against the employer, Exclusively Temporary, Inc., its insurer, Zurich Insurance Company, and the Second Injury Fund to recover workers' compensation benefits for an allegedly work related shoulder injury that occurred on August 2, 2. The complaint further alleged that the injury and resulting disability were superimposed upon a previous injury for which the claimant had received an award under Florida's Workers' Compensation Law. The employer and its insurer, by a cross-claim against the Second Injury Fund, averred that the claimant was totally and permanently disabled as a result of the second injury and that the employer's liability should not exceed 1 percent disability. The Second Injury Fund denied any liability. After a trial, the trial court awarded permanent partial disability benefits, in favor of the claimant and against the Second Injury Fund, based on 95 percent permanent partial disability to the body as a whole. The fund has appealed. For injuries occurring on or after July 1, 1985, appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2) (21 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Macon
Workers Compensation Panel
T. v. Swaw v. Trane Unitary Products Commercial, A/K/A M2001-02793-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: John H. Gassaway, 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 and its insurer question the award of permanent partial disability benefits based on 75 percent to the body as a whole and insist the preponderance of the evidence supports only a lesser award of permanent disability benefits to the left knee. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and WILLIAM H. INMAN, SR. J., joined. Wm. G. McCaskill, Jr., Taylor, Pigue, Marchetti & McCaskill, Nashville, Tennessee, for the appellants, Trane Unitary Products Commercial a/k/a Trane Company, and Travelers Indemnity Company of Illinois Julia Smith, Clarksville, Tennessee, for the appellee, T. V. Swaw MEMORANDUM OPINION The employee or claimant, Mr. Swaw, initiated this civil action to recover workers' compensation benefits for an alleged work-related injury to both legs occurring on September 29, 1997. The employer, Trane, and its insurer, Travelers, admitted liability for the injury to the claimant's left knee, but denied any other liability. Following a trial on February 5, 21, the trial court awarded, among other things, future medical benefits and permanent partial disability benefits based on 75 percent to the body as a whole. The employer and its insurer have appealed. For injuries occurring on or after July 1, 1985, appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2) (21 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
The defendant, indicted on counts of especially aggravated robbery, conspiracy to commit aggravated robbery, theft over $1,000.00, and evading arrest, entered pleas of guilt to aggravated robbery and theft over $1,000.00. The trial court imposed an effective sentence of ten years. There was no appeal. Later, the defendant filed a petition for post-conviction relief and the trial court granted a delayed appeal. The issues presented for our review are as follows: (1) whether the guilty plea was knowingly and voluntarily entered; (2) whether trial counsel was ineffective by failing to file a direct appeal or by failing to timely file a motion to reduce the sentence; (3) whether the trial court properly modified an illegal sentence; and (4) whether the sentence imposed was excessive. The judgment is affirmed.
Carrie Mildred Mayer Dube ("Wife") sued Michael Norman Dube ("Husband") for a divorce. Wife is primarily a stay-at-home mother and Husband is an emergency room physician. The Trial Court divided the marital property with 65% of the property going to Wife. The Trial Court awarded Wife permanent alimony of $3,200 per month after finding Wife could not be sufficiently rehabilitated. Child support was set based on Husband's income for 2000, during which time he claims to have worked approximately 90 hours per week. Husband appeals the division of marital property, award of permanent alimony, and amount of child support which was based on his 90 hour work week. We affirm.
The defendant pled guilty to delivery of cocaine under .5 grams. The trial court imposed a Range II eight-year sentence in the Department of Correction. The defendant appeals her sentence, arguing it was excessive and she should have received alternative sentencing. We affirm the judgment of the trial court.
The petitioner, James E. Jackson, appeals the trial court's denial of his petitions for writ of error coram nobis and post-conviction relief from his conviction for first degree murder. In regard to the petition for writ of error coram nobis, the petitioner claims that newly discovered evidence entitles him to a new trial. In regard to the petition for post-conviction relief, he contends that he received the ineffective assistance of counsel because his trial attorney failed to call certain witnesses to testify and did not investigate and present a diminished capacity defense. We affirm the trial court's denial of the petitions.
