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| Cynthia Ellen Walker v. Advance Transformer Company,
E2001-03074-WC-R3-CV
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
Authoring Judge: Howell N. Peoples, Special Judge
Originating Judge:Frank V. Williams, Chancellor |
Knox County | Workers Compensation Panel | 05/02/03 | |
| State of Tennessee v. Charles Nathan Waddle
E2002-00688-CCA-R3-CD
A Greene County jury convicted the Defendant of aggravated burglary and theft of property. The trial court imposed an effective sentence of six years to be served in the Tennessee Department of Correction. On appeal, the Defendant challenges the sufficiency of the convicting evidence and the appropriateness of the sentences imposed. He also argues that the trial court should have declared a mistrial when evidence of other crimes by the Defendant was introduced at trial. Because we conclude that the evidence is sufficient, the sentences are appropriate, and a mistrial was not required, we affirm the convictions.
Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge James Edward Beckner |
Greene County | Court of Criminal Appeals | 05/02/03 | |
| State of Tennessee v. Ashley Nesbitt
W2001-01663-CCA-R3-CD
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.
Authoring Judge: Judge David H. Welles
Originating Judge:Judge John P. Colton, Jr. |
Shelby County | Court of Criminal Appeals | 05/02/03 | |
| Teresa L. Crisp v. Liberty Mutual Insurance Company
M2002-01236-WC-R3-CV
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-
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Billy Joe White, Chancellor |
Fentress County | Workers Compensation Panel | 05/02/03 | |
| Linda J. Corum v. Holston Health & Rehabilitation Center, et al.
E2001-02074-SC-WCM-CV
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.
Authoring Judge: Justice Adolpho A. Birch, Jr.
Originating Judge:Chancellor Sharon J. Bell |
Knox County | Supreme Court | 05/02/03 | |
| City of Red Bank, Tennessee, et al. v. Kimilla R. Cofer
E2002-00192-WC-R3-CV
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-
Authoring Judge: Byers, Sr. J.
Originating Judge:Jackie Schulten, Judge |
Knox County | Workers Compensation Panel | 05/02/03 | |
| La-Z-Boy, Inc., v. Patricia Van Winkle
E2002-01423-WC-R3-CV
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-
Authoring Judge: John K. Byers, Sr.J.
Originating Judge:J. Curtis Smith, Judge |
Knox County | Workers Compensation Panel | 05/02/03 | |
| Walter H. Denton v. Liberty Mutual Insurance Company
E2002-00872-WC-R3-CV
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-
Authoring Judge: Byers, Sr. J.
Originating Judge:Jacqueline F. Schulten, Circuit Judge |
Knox County | Workers Compensation Panel | 05/02/03 | |
| State of Tennessee v. Harold L. Green
E2000-00616-SC-R11-CD
We granted Harold L. Green's application pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure to determine the duration of the trial court's authority to entertain a motion to withdraw a guilty plea. On October 8, 1999, Green pleaded guilty to driving while under the influence of an intoxicant and was, thereafter, sentenced by the Criminal Court of Anderson County. On November 5, 1999, Green filed a motion to withdraw the previously entered guilty plea; the trial court granted the motion. The State appealed pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. After granting the State's request for appeal, the Court of Criminal Appeals held that the trial court was without jurisdiction to consider the motion to withdraw the guilty plea. We find that the trial court's jurisdiction to hear and decide the motion to withdraw the guilty plea continued for thirty days after the plea was entered. Accordingly, we reinstate the judgment of the trial court and remand the cause for any further proceedings that may be appropriate.
Authoring Judge: Justice Adolpho A. Birch, Jr.
Originating Judge:Judge James B. Scott, Jr. |
Anderson County | Supreme Court | 05/01/03 | |
| Larry White v. Federated Mutual Insurance Company
M2002-00621-COA-R3-CV
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 had suffered a 16 percent loss of his left arm and 28 percent loss to his right arm and entered judgment accordingly. The trial court further ordered the defendant to hold the plaintiff harmless for any subrogation claims against him for recovery of medical bills paid by an insurance company under a policy for health care owned by the plaintiff. The defendant says the evidence does not support a finding the plaintiff was injured in the course and scope of his employment with the defendant; the court erred in not finding the last injurious rule should apply; there is no showing the plaintiff suffered any vocational disability to his arms, and that the trial court erred by finding the defendant should hold the plaintiff harmless for any subrogation claims of a health insurance policy for payment made on behalf of the plaintiff for treatment of the carpal tunnel syndrome. 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 JOHN K. BYERS, SR. J., in which FRANK F. DROWOTA, III, C.J., and JOE C. LOSER, SP. J., joined. Gordon C. Aulgur and David Brett Burrow, Nashville, Tennessee, attorneys for the appellant, Federated Mutual Insurance Company. Tracy White Moore, Columbia Tennessee, attorney for the appellee, Larry White. MEMORANDUM OPINION Plaintiff (employee) was forty-nine years of age at the time of trial. He has a twelfth grade education and completed a three-year apprenticeship as an iron worker. Upon completing this apprenticeship, he received a card certifying him as a journeyman iron worker, which entitled him to perform all aspects of the trade including welding, structural steel, concrete work, fundamental iron, and all aspects of building metal buildings and concrete buildings. The plaintiff testified that at the time of the injury that is the cause of this action, he earned his income as a member of a trade union. At the local union hall, there was a listing of jobs he could perform if qualified and he would go out and perform the work. When he was finished with the job or laid off, he would return to the union hall for more work. This is how he came to work for Tomlin Construction Company, the company insured by the defendant. The plaintiff began working for Tomlin on March 24, 1999. He testified that while working for Tomlin between April 19, 1999, and April 26, 1999, he noticed for the first time that his hands were "going to sleep" and becoming numb and his arms began to hurt. He testified that his hands and arms had never bothered him in this manner before April 19, 1999. On May 6, 1999, while seeing his physician for unrelated treatment to his back, the plaintiff told this doctor, Dr. Darrell Rheinhart, about the problems with his hands. Dr. Rheinhart sent the plaintiff for an EMG (nerve conduction study) which was conducted on May 1, 1999. After the EMG, the plaintiff reported his injury to his supervisor at Tomlin and completed a First Report of Injury. After May 1, the plaintiff did not perform any work with his hands (such as welding or tying rebar,) for Tomlin. The remainder of his work for Tomlin involved light duty work that did not involve his hands. The last day the plaintiff worked for Tomlin was July 3, 1999. After leaving Tomlin, the plaintiff continued to work full-time performing welding work for other companies through his trade union. The plaintiff continued seeing physicians about his hand problems as he continued to work as an iron worker. He testified that during this time, his hand condition got no worse but got no better. At the recommendation of these physicians, the plaintiff had carpal tunnel release surgery performed on his right hand on November 9, 1999, and on his left hand on December 11, 1999, by a Dr. Schmidt in Nashville. The plaintiff testified that these surgeries relieved the numbness and tingling in his hands, but that he lost much of his hand strength as a result of the surgeries. He testified that he believed that thirty to forty percent of jobs that formerly would have been available to him are now not available to him due to the loss of strength in his hands. The work the plaintiff did at Tomlin required extensive use of his hands especially the bending and tying of rebar. Rebar is a rod used to strengthen concrete walls. To tie rebar, the worker must use a large pair of pliers to twist wire onto the bar and to bend or shape the bar. The plaintiff was doing this work for Tomlin from four to six hours a day. In addition to this, the plaintiff used an -2-
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:Robert L. Holloway, Judge |
White County | Workers Compensation Panel | 05/01/03 | |
| Randall Eugene Best v. State of Tennessee
E2002-00668-CCA-R3-PC
The petitioner, Randall Eugene Best, appeals the trial court's denial of his petition for post-conviction relief. In this appeal, he asserts that he was denied the effective assistance of counsel at trial and on appeal. The judgment is affirmed.
Authoring Judge: Presiding Judge Gary R Wade
Originating Judge:Judge Carroll L. Ross |
Monroe County | Court of Criminal Appeals | 04/30/03 | |
| Jewell Winningham v. Findlay Industries,
M2002-02059-WC-R3-CV
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 denying her application for reconsideration pursuant to Tenn. Code Ann. _ 5-6-241(a)(2). As discussed below, the panel has concluded that, under the circumstances, the claimant is entitled to an evidentiary hearing to determine whether she is entitled to an increased award. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Circuit Court Vacated and Case Remanded JOE C. LOSER, JR., SP. J., in which FRANK F. DROWOTA, III, C. J., and BEN H. CANTRELL, SP. J., joined. Sonya Henderson, Thomas, Henderson & Pate, Murfreesboro, Tennessee, for the appellant, Jewell Winningham Kenneth M. Switzer, Ruth, Howard, Tate & Sowell, Nashville, Tennessee, for the appellee, Findlay Industries MEMORANDUM OPINION The employee or claimant, Ms. Winningham, initiated this civil action to recover workers' compensation benefits for injuries suffered when a heavy box of materials fell on top of her while she was working for the employer, Findlay Industries. Her alleged injuries included a crushed left hand with lacerated fingers, a fractured left knee and strains to her neck, back and shoulder. At trial, the claimant contended her award of permanent partial disability benefits should exceed two and one-half times her medical impairment rating for the injury because, although she had returned to work at an hourly wage equal to or greater than what she was receiving at the time of the injury, her actual wages were less than before because she was unable to work as many hours. A medical expert estimated her permanent medical impairment to be 18 percent to the whole body, as a result of her injuries. The special judge found the return to work issue "moot" and awarded permanent disability benefits based on 4 percent to the body as a whole, an amount less than two and one-half times the claimant's medical impairment rating. That judgment was filed on May 26, 2. No appeal was taken and the judgment became final. Thereafter, the claimant petitioned the court for reconsideration pursuant to Tenn. Code Ann. 5-6-241(a)(2) and a "Motion to Clarify" the final judgment. The motion to clarify was argued before a different special judge. At that motion hearing, the court considered the first special judge's testimony that he did not intend to preclude reconsideration by characterizing the return to work issue as moot. Notwithstanding that undisputed testimony, the special judge dismissed the application for reconsideration "based upon the judgment order of May 26, 2." The claimant has appealed. Conclusions of law are reviewed de novo without any presumption of correctness. Nutt v. Champion Intern. Corp., 98 S.W.2d 365, 367 (Tenn. 1998). Tenn. R. Civ. P. 59 and 6 specify the post trial motions available to a party who is dissatisfied with a final decision. Motions to clarify are not included. The rules of civil procedure are applicable to actions to recover workers' compensation benefits. Blake v. Plus Mark, Inc., 952 S.W.2d 413 (Tenn. 1997). In addition, the courts are not at liberty to issue advisory decisions. We conclude, therefore, that there is no such thing as a motion to clarify. 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 in effect at the time of the injury. Nutt v. Champion Intern. Corp., 98 S.W.2d 365, 368 (Tenn. 1998). Such statutes are part of the contract of employment and the rights and responsibilities of such injured employee and his employer can only be ascertained from a consideration of those statutes as construed by the courts. Hudnall v. S. & W. Constr. Co. of Tenn., Inc., 6 Tenn. App. 743, 451 S.W.2d 858 (1969). The entire workers' compensation system of law is statutory. Vinson v. Firestone Tire and Rubber Co., Inc., 655 S.W.2d 931, 933 (Tenn. 1983). The Act is in the nature of an insurance policy and an action to recover the benefits provided therein is an action on a contract. Woods v. City of LaFollette, 185 Tenn. 655, 661, 27 S.W.2d 572, 574 (1948). It must be interpreted in a manner designed to protect workers and their families from the economic devastation that can follow on-the-job injuries. Nance v. State Ind., Inc., 33 S.W.3d 222, 227 (Tenn. 2). Where an injured worker is entitled to permanent partial disability benefits to the body as a whole and the pre-injury employer returns the employee to employment at a wage equal to or greater than the wage the employee was receiving at the time of the injury, the maximum permanent partial disability award that the employee may receive is two and one-half times the medical impairment rating pursuant to the provisions of the American Medical Association Guides to the Evaluation of Permanent Impairment or the Manual for Orthopedic Surgeons in Evaluating Permanent Physical -2-
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:James L. Weatherford, Senior Judge |
Warren County | Workers Compensation Panel | 04/30/03 | |
| William Williams vs. Marla Barnes-Mason
E2002-01442-COA-R3-CV
Primary residential custody was awarded to mother. Father appealed. We affirm.
Originating Judge:Mindy Norton Seals |
Hamblen County | Court of Appeals | 04/30/03 | |
| Jack Parks vs. Chuck Rich
E2002-02014-COA-R3-CV
Jack H. Parks sued Chuck Rich, the owner of an apartment complex. Parks initially complained of a back injury resulting from his jumping off a first floor balcony railing, and irritation to his body caused by a bug spray applied in his apartment unit, both of which incidents occurred at the complex. The trial court granted the defendant's motion for summary judgment. The plaintiff appeals, contending that summary judgment is not appropriate with respect to the bug spray matter and that the trial court erred with respect to certain discovery matters. We affirm.
Authoring Judge: Judge Charles D. Susano, Jr.
Originating Judge:Jean A. Stanley |
Washington County | Court of Appeals | 04/30/03 | |
| Dept of Children's Srvcs. vs. L.F.
E2002-02209-COA-R3-JV
The trial court terminated the parental rights of L.F. ("Mother") with respect to her minor child, D.F. (DOB: January 28, 1994) ("the child"). Mother appeals, essentially arguing that the evidence preponderates against the trial court's dual findings, by clear and convincing evidence, (1) that statutory grounds for termination exist and (2) that termination is in the best interest of the child. We affirm.
Authoring Judge: Judge Charles D. Susano, Jr.
Originating Judge:Dwight E. Stokes |
Sevier County | Court of Appeals | 04/30/03 | |
| In Re: Adoption of Samuel Downey, et.al. vs. Catherine Downey
E2002-01972-COA-R3-CV
The Trial Court approved adoption of three minor children by sister of biological mother. Mother appealed, insisting Georgia Court decree terminating her parental rights to the children was defective. We affirm.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:W. Frank Brown, III |
Hamilton County | Court of Appeals | 04/30/03 | |
| Manny T. Anderson v. State of Tennessee
M2002-00641-CCA-R3-PC
The petitioner pled guilty to two counts of aggravated assault and one count of aggravated kidnapping on September 10, 1998, and was sentenced as a Range II, multiple offender to concurrent sentences of eight years at 35% for each count of aggravated assault and as a Range I, standard offender to eight years at 30% for the aggravated kidnapping charge, with the sentence suspended and the petitioner placed on eight-year probation. As a result of a probation violation, the trial court, on September 14, 2001, revoked probation and amended the judgments so that the sentence to be served for aggravated kidnapping was modified to eight years at 100%. Challenging the amendment, a pro se petition for post-conviction relief was filed on January 2, 2002, which was denied as being untimely. On appeal, the petitioner argues that, because the one-year statute of limitations began to run at the time of entry of the amended judgment for the kidnapping conviction, his post-conviction petition was timely. We agree and reverse the order of the post-conviction court dismissing the petition as untimely.
Authoring Judge: Judge Alan E. Glenn
Originating Judge:Judge Cheryl A. Blackburn |
Davidson County | Court of Criminal Appeals | 04/30/03 | |
| State of Tennessee v. Danyelle Dewain Parker
M2002-01172-CCA-R3-PC
The petitioner, Danyelle Dewain Parker, appeals the trial court's denial of post-conviction relief. The single issue presented for review is whether the petitioner was denied the effective assistance of counsel at trial. The judgment is affirmed.
Authoring Judge: Presiding Judge Gary R Wade
Originating Judge:Judge Steve R. Dozier |
Davidson County | Court of Criminal Appeals | 04/30/03 | |
| William K. Robison v. State of Tennessee
M2002-01928-CCA-R3-PC
The Appellant, William K. Robison, appeals the denial of his petition for post-conviction relief by the Hickman County Circuit Court. Robison is currently serving an effective sentence of fifteen years as a result of his guilty pleas to aggravated assault, setting fire to personal property, escape and theft over $10,000. On appeal, Robinson argues the post-conviction court erred in finding that: (1) he received effective assistance of counsel and (2) his guilty pleas were knowingly and voluntarily entered. Finding no error, the judgment of the post-conviction court is affirmed.
Authoring Judge: Judge David G. Hayes
Originating Judge:Judge Timothy L. Easter |
Hickman County | Court of Criminal Appeals | 04/30/03 | |
| State of Tennessee v. Darryl Lee Elkins
E2001-01245-SC-R11-CD
Authoring Judge: Justice William M. Barker
Originating Judge:R. Jerry Beck |
Sullivan County | Supreme Court | 04/29/03 | |
| State of Tennessee v. Edward Clay and Timothy B. Clay
M2002-01319-CCA-R3-CD
The co-defendants pled guilty to conspiracy to sell "ecstasy," a Schedule I controlled substance. After a sentencing hearing, each received a sentence of eight years to be served in split confinement, with all but eight months on probation. The co-defendants contend that the trial court erred in not granting them full probation. We affirm the judgments of the trial court.
Authoring Judge: Judge John Everett Williams
Originating Judge:Judge Don R. Ash |
Rutherford County | Court of Criminal Appeals | 04/29/03 | |
| State of Tennessee v. Dwayne A. Williams
W2002-00829-CCA-R3-CD
The defendant was convicted by a jury of possession of more than 300 grams of cocaine with the intent to deliver. The trial court sentenced the defendant as a Range I standard offender to twenty years incarceration. The defendant contends the evidence is insufficient to sustain his conviction. We conclude the evidence is sufficient to sustain the defendant's conviction and affirm the judgment of the trial court.
Authoring Judge: Judge John Everett Williams
Originating Judge:Judge Bernie Weinman |
Shelby County | Court of Criminal Appeals | 04/29/03 | |
| State of Tennessee v. Darryl Lee Elkins
E2001-01245-SC-R11-CD
Authoring Judge: Justice William M. Barker
Originating Judge:R. Jerry Beck |
Sullivan County | Supreme Court | 04/29/03 | |
| State of Tennessee v. Cleophis King
W2001-01151-CCA-R3-PC
The petitioner appeals the denial of his petition for post-conviction relief, arguing that the post-conviction court erred in finding that his guilty pleas were knowing and voluntary and that he received the effective assistance of counsel. Following our review, we affirm the judgment of the post-conviction court.
Authoring Judge: Judge Alan E. Glenn
Originating Judge:Judge John P. Colton, Jr. |
Shelby County | Court of Criminal Appeals | 04/29/03 | |
| State of Tennessee v. Maurice Whitlock
E2002-01388-CCA-R3-CD
Pursuant to a plea agreement, the defendant pled guilty to aggravated assault, a Class C felony and received a three-year sentence with the manner of service to be determined by the trial court. Following a sentencing hearing, the trial court ordered that the defendant serve his three-year sentence in the Tennessee Department of Correction. The defendant now appeals, arguing that the trial court erred by failing to grant the defendant probation or alternative sentencing. Finding no error, we affirm the judgment of the trial court.
Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge Stephen M. Bevil |
Hamilton County | Court of Criminal Appeals | 04/29/03 |