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| Harold W. Ferrell, Jr. v. Apac-Tennessee, Inc. and CignaProperty & Casualty Insurance Co.,
M2000-00223-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. section 5-6-225 (e)(3). The employer contends this claim for work related hearing loss is time barred by notice and statute of limitations provisions, and that the award is excessive. We conclude that notice was timely given, suit was timely filed, and the award is supported by the evidence. JOHN A. TURNBULL, SP. J., in which FRANK F. DROWOTA, III, J., and FRANK G. CLEMENT, Jr., Sp. J, joined. Tyree B. Harris, IV, and Alan D. Johnson, Nashville, TN, for the Appellants APAC-Tennessee, Inc. and Cigna Property and Casualty Insurance Company William Joseph Butler and Frank D. Farrar, LaFayette, TN, for the Appellee Harold W. Ferrell, Jr. MEMORANDUM OPINION Facts The employee, Harold Ferrell, Jr., a 38 year old heavy construction worker with an eleventh grade education, had worked for APAC for eighteen years. In this work he performed such jobs as running a jackhammer, loading dynamite behind a track drill, and operating large equipment in which tasks he was exposed to loud noises approximately ninety percent of the time. In 1985, Mr. Ferrell noticed a ringing in his ears. The problem gradually worsened, and in February, 1994, he consulted Dr. Bell who did not offer an explanation for the cause of his condition, or advise him that his condition was permanent. For the purpose of having his hearing checked by a company doctor, Mr. Ferrell wrote the following letter to APAC on May 1, 1995: I went for a checkup on 2/22/94, and my hearing was bad. Since then it has gotten worse and [is] bothering me. I want this letter to be put in my file. I also want to know what company doctor I need to go to. APAC followed this letter by sending Mr. Ferrell to see Dr. Steele for an examination. During this exam, he specifically asked Dr. Steele if his hearing condition was job related. By letter dated May 25, 1995, the employer advised Mr. Ferrell to wear hearing protection on the job and stated: "According to Malcolm Steele, M.D., you have a hearing condition. This condition is probably inherited instead of job related." Dr. Steele did not advise the employee that his condition was permanent. Shortly thereafter, Mr. Ferrell asked APAC about going to a doctor and was advised that he could go to any doctor he chose at the expense of his own insurance. Mr. Ferrell's hearing continued to worsen and in April, 1998, he returned to Dr. Bell. At that visit, Mr. Ferrell did not ask, nor was he told that his hearing problem was work related. However, in August, 1998, Mr. Ferrell was consulting his attorney, Frank Farrar, on another matter when he was advised that his hearing problem might be work related. This suit was filed the next day, August 2, 1998. The country lawyer's opinion on causation was confirmed by the only medical evidence presented at trial, a C-32 Form, and attached medical records of Dr. Bell, a board certified otolaryngologist. This medical evidence, which APAC chose not to cross-examine, indicates that between 1994 and 1998, Mr. Ferrell's hearing had deteriorated. The 1994 audiogram showed a % combined hearing loss, but the 1998 tests indicated a combined hearing loss of 7% with increased loss of hearing levels to speech. Dr. Bell also expressed the opinion that Mr. Ferrell's permanent hearing impairment more probably than not arose out of his employment with APAC. The C-32 Form was dated March 25, 1999. Mr. Ferrell had been permanently laid off by APAC in April of 1998, but at the time of trial, was working for another construction company wearing noise protection with no reduction in pay. The trial judge, who had the opportunity to observe Mr. Ferrell's reaction to sound at trial, found that notice was timely, the suit was filed within the statute of limitations, and that Mr. Ferrell had suffered a permanent vocational bilateral hearing loss of 4%. The trial judge specifically found Mr. Ferrell's testimony to be credible. Issues [1]
Authoring Judge: John A. Turnbull, Sp. J.
Originating Judge:J. Richard McGregor, Special Judge |
Warren County | Workers Compensation Panel | 10/30/00 | |
| State vs. William A. Holt
M2000-01063-CCA-R3-PC
The appellant was originally convicted by a Marshall County jury of attempt to commit first degree murder, and he received a sentence of twenty-one years imprisonment. The conviction was affirmed on direct appeal. He sought post-conviction relief, which was denied by the trial court. In this appeal as a matter of right, the appellant contends that his trial counsel provided ineffective assistance of counsel. After a thorough review of the record, we conclude that the trial court correctly denied post-conviction relief.
Authoring Judge: Judge Joe G. Riley
Originating Judge:W. Charles Lee |
Marshall County | Court of Criminal Appeals | 10/30/00 | |
| Cheryl N. Buckner, et al vs. David F. Hassell, M.D., et al
E1999-02564-COA-R3-CV
Ronald L. Buckner was diagnosed with a rare form of melanoma which ultimately resulted in his death. His wife, Cheryl N. Buckner, brought this medical malpractice action against her husband's family physician, Dr. David F. Hassell. The Trial Court excluded portions of the testimony of Mr. Buckner's dermatologist and dermatopathologist due to Ms. Buckner's failure to name these physicians as expert witnesses in her answers to interrogatories pursuant to Tenn. R. Civ. P. 26. The jury returned a verdict in favor of Dr. Hassell, and thereafter, Ms. Buckner filed a Motion for New Trial based upon the weight of the evidence and the Trial Court's exclusion of the dermatologist's testimony regarding the standard of care. The Trial Court denied the Motion. On appeal, Ms. Buckner contends that the Trial Court erred in excluding the testimony at issue because Dr. Hassell did not suffer any prejudice from these physicians not having been identified as expert witnesses in Plaintiff's answers to interrogatories as his attorney was aware of the dermatologist's opinions prior to his deposition for proof, and because each of these treating physicians whose testimony was excluded was not a Rule 26 expert witness. We affirm.
Authoring Judge: Judge David Michael Swiney
Originating Judge:Dale C. Workman |
Knox County | Court of Appeals | 10/30/00 | |
| State vs. Jimmy Ray Mitchell
M1999-02536-CCA-R3-CD
The appellant/defendant, Jimmy Ray Mitchell, appeals as of right from a judgment of the Davidson County Criminal Court from a jury conviction for the offense of driving under the influence of an intoxicant, first offense. The trial court imposed a sentence of eleven (11) months and twenty-nine (29) days, after the defendant serves fifteen (15) days, the defendant shall be on probation for eleven (11) months and twenty-nine (29) days. The trial court imposed a fine of five hundred dollars ($500). In his single appellate issue, the defendant contends that the trial court erroneously admitted evidence of the breath test results. After a complete review of the record in this cause, we find the defendant failed to allege such trial error in his original motion for a new trial. The judgment of the trial court is affirmed.
Authoring Judge: Sr. Judge L. Terry Lafferty
Originating Judge:Seth W. Norman |
Davidson County | Court of Criminal Appeals | 10/30/00 | |
| Penny Michelle Loveday v. Food Lion, Inc.
E1999-00188-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The defendant/appellant, Food Lion, Inc., appeals the trial court's award of temporary total disability benefits, permanent partial disability benefits, and five hundred dollars in costs associated with service of process and subsequent default judgment hearings. Specifically, Food Lion contends the plaintiff, Penny Michelle Loveday, failed to adequately serve her complaint and thus it should not be punished for the ensuing costs associated with the setting aside of the default judgment. Food Lion also contends (1) Ms. Loveday failed to carry her burden of proof with respect to showing she suffered an injury during the course and scope of her employment; (2) the medical testimony failed to establish causation; (3) assuming an injury, the trial judge exceeded the 2.5 multiplier; (4) temporary total disability should have been awarded for only twelve days; and (5) the trial judge improperly excluded the plaintiff medical records and deposition testimony. We affirm.
Authoring Judge: Byers, Sr. J.
Originating Judge:James B. Scott, Jr., Judge |
Knox County | Workers Compensation Panel | 10/27/00 | |
| E2060-00255-COA-R3-CV
E2060-00255-COA-R3-CV
Originating Judge:John B. Hagler, Jr. |
McMinn County | Court of Appeals | 10/27/00 | |
| Dunlap vs. Fortress Corp. and Covenant Health
E2000-00103-COA-R3-CV
Plaintiff's action for personal injuries sustained at defendant's fitness center was dismissed by the Trial Court because plaintiff's agreement with the center contained an exculpatory clause. We vacate the Judgment.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:Harold Wimberly |
Knox County | Court of Appeals | 10/27/00 | |
| State vs. Frederick Parks
W1999-01357-CCA-R3-CD
Defendant, Frederick Parks, was found guilty by a Madison County jury of one count of burglary and one count of theft over $500, for which he received consecutive sentences of four years and two years, respectively. The jury also fined the defendant $750, and the trial court ordered the defendant to pay $1500 in restitution. On appeal, the defendant raises two issues: 1) whether the evidence presented at trial was sufficient to support his convictions; and 2) whether the trial court erred by imposing consecutive sentences on the defendant. The judgment of the trial court is affirmed.
Authoring Judge: Judge John Everett Williams
Originating Judge:Roy B. Morgan, Jr. |
Madison County | Court of Criminal Appeals | 10/27/00 | |
| Kathy George v. Carrier Corporation, et al
M1999-02577-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with the Tenn. Code Ann. _5-6-225(e)(3) for hearing and reporting findings of fact and conclusions of law. The issue on appeal presented by the employer/appellant is whether the Court erroneously awarded a 25% penalty on temporary total disability benefits in the absence of a finding of bad faith. The employee also appeals and presents a separate issue, whether the employer is entitled to an offset for disability insurance benefits received by the employee for the period of disability. The panel has concluded that the judgment of the trial court should be affirmed.
Authoring Judge: Frank G. Clement, Jr., Sp. J
Originating Judge:Robert E. Corlew, III, Judge |
Cannon County | Workers Compensation Panel | 10/27/00 | |
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X2010-0000-XX-X00-XX
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Supreme Court | 10/27/00 | ||
| State vs. John Brown
W1999-00626-CCA-R3-CD
John Brown appeals from his Shelby County convictions of aggravated robbery and especially aggravated kidnapping. He alleges insufficiency of identification evidence and plain error in admission of evidence of arrests for other crimes. Because there is no error of record requiring reversal, we affirm.
Authoring Judge: Judge J. Curwood Witt, Jr.
Originating Judge:Joseph B. Dailey |
Shelby County | Court of Criminal Appeals | 10/27/00 | |
| State vs. Eric Hall
W1999-00610-CCA-R3-CD
A Shelby County jury convicted the appellant, Eric B. Hall, of one (1) count of robbery and one (1) count of theft of property over the value of $1,000. The trial court sentenced the appellant as a Range II, Multiple Offender, to consecutive sentences of ten (10) years for robbery and eight (8) years for theft of property. On appeal, the appellant contends that: (1) the evidence is insufficient to sustain his convictions; (2) the trial court improperly charged the jury with regard to the statutory elements of robbery; and (3) the trial court imposed excessive sentences by ordering consecutive sentencing. After a thorough review of the record before this Court, we hold that the evidence is sufficient to sustain the jury's guilty verdict for theft of property over $1,000 and that conviction is affirmed. Regarding the appellant's conviction for robbery, however, the state presented insufficient evidence that the requisite element of fear or violence was the mechanism by which the theft of jewelry was accomplished. Therefore, the appellant's conviction for robbery is reversed, and the conviction for that offense is dismissed. The case is remanded for a new trial on the offense of theft of property.
Authoring Judge: Judge Jerry Smith
Originating Judge:Joseph B. Brown |
Shelby County | Court of Criminal Appeals | 10/27/00 | |
| Roy R. Ferguson v. Sherry Hoppe, Donna Pierce, and Harold L. Underwood
03A01-9902-CV-00038
In this action, the Trial Court dismissed the plaintiff’s complaint, and he has appealed.
Authoring Judge: Judge Herschel Pickens Franks
Originating Judge:Judge Russell Simmons, Jr. |
Court of Appeals | 10/26/00 | ||
| Maelene Fowler vs. Jerry Wilbanks
W2000-00452-COA-R3-CV
Plaintiffs sued to enjoin Defendant from denying their right to use a private dirt and gravel road on Defendant's property in order to access their property. The trial court held that Plaintiffs established an easement by implication and/or prescription in the private road, and enjoined Defendant from preventing Plaintiffs' future access to the road. Defendant appeals.
Authoring Judge: Judge W. Frank Crawford
Originating Judge:Dewey C. Whitenton |
McNairy County | Court of Appeals | 10/25/00 | |
| Russell vs. Russell
E1999-02742-COA-R3-CV
This appeal from the Hamilton County Chancery Court concerns whether the Trial Court erred in awarding primary residential responsibility of the minor child to the Appellee, Burgess Stephen Russell. The Appellant, Linda Sharion Russell, appeals the decision of the Chancery Court. We affirm the decision of the Trial Court and remand for further proceedings, if any, consistent with this opinion. We adjudge costs of the appeal against the Appellant, Linda Sharion Russell and her surety.
Authoring Judge: Judge Houston M. Goddard
Originating Judge:Howell N. Peoples |
Hamilton County | Court of Appeals | 10/25/00 | |
| State vs. Carl Ross
W1999-01455-CCA-R3-PC
The petitioner, Carl Ross, appeals from the Shelby County Criminal Court's dismissal of his petition for post-conviction relief in which he asserted various instances of ineffective assistance of counsel. Because we conclude that the record supports the lower court's determination that the petitioner failed to establish his claims by clear and convincing evidence, we affirm the dismissal of the post-conviction petition.
Authoring Judge: Judge J. Curwood Witt, Jr.
Originating Judge:Joe Brown |
Shelby County | Court of Criminal Appeals | 10/25/00 | |
| State vs. Lisa Ann Bargo
E1999-00156-CCA-R3-CD
Defendant Lisa Ann Bargo was convicted by a jury of one count of forgery, one count of attempt to commit theft over $10,000, and one count of criminal impersonation. The trial court subsequently set aside the jury verdicts on the attempt to commit theft and the criminal impersonation charges and sentenced the defendant on her forgery conviction to ten years as a Range II multiple offender to be served in the Department of Correction. In this appeal, the defendant challenges the sufficiency of the convicting evidence and the length of the sentence. We affirm the defendant's conviction and sentence.
Authoring Judge: Judge J. Curwood Witt, Jr.
Originating Judge:Phyllis H. Miller |
Sullivan County | Court of Criminal Appeals | 10/25/00 | |
| Blumberg vs. Dept. of Human Svcs.
M2000-00237-COA-R3-CV
Frederic Blumberg ("Blumberg") filed a petition against his wife in the Sumner County Circuit Court, seeking all his wife's marital assets and an increase in his minimum monthly maintenance needs allowance. On September 16, 1998, the Sumner County Circuit Court issued an Order requiring Mrs. Blumberg to pay as support for the benefit of Mr. Blumberg, all of her monthly income. Subsequently, Blumberg applied for Medicaid benefits on behalf of Mrs. Blumberg, administered by the Tennessee Department of Human Services ("DHS"), for which he was approved. On October 26, 1998, Blumberg received notice from DHS that his request for an income allocation was denied. Thereafter, Blumberg requested an administrative hearing appealing the denial of spousal allocations. On December 8, 1998, an administrative hearing with DHS was held, and Blumberg's appeal was denied. The Chancery Court affirmed the decision of the DHS, finding that the support order was not validly adjudicated because of lack of notice to DHS. This appeal followed.
Authoring Judge: Judge Don R. Ash
Originating Judge:Tom E. Gray |
Sumner County | Court of Appeals | 10/25/00 | |
| State vs. Prince Glass
W2000-00079-CCA-R3-CD
The defendant, Prince Terrell Glass, appeals from his conviction of possession with intent to deliver .5 grams or more of cocaine. He alleges the evidence of "intent to deliver" is insufficient to support his conviction and that he is guilty of no offense greater than simple possession. Upon review of the record, the briefs of the parties, and the applicable law, we affirm.
Authoring Judge: Judge J. Curwood Witt, Jr.
Originating Judge:Joseph H. Walker, III |
Lauderdale County | Court of Criminal Appeals | 10/25/00 | |
| Hunt vs. Claybrooks, et al
M1999-01582-COA-R3-CV
This litigation began as a pro bono case. Defendant/Appellant James Goodner ("Goodner") represented himself pro se on October 22, 1997 at the General Sessions Court and received a judgment against him. Goodner timely appealed the decision to the Circuit Court. Plaintiff/Appellee Allie Mae Hunt ("Hunt") died after the case was appealed from the General Sessions Court to the Circuit Court for Davidson County, Tennessee. Thereafter, the trial court dismissed Goodner's appeal and this case took on a different character. David E. Danner ("Danner") filed a Rule 60.02 motion to get the case reinstated, allegedly accusing Hunt's attorney, C. Bennett Harrison ("Harrison") of "fraud, misrepresentation or other misconduct." Harrison filed a response to the motion containing a motion for Rule 11 sanctions against Danner. Subsequently, Danner asked for sanctions against Harrison, which were denied. Hunt's case was reinstated, but the trial court ordered Danner to pay attorney fees of $100 to Harrison as a sanction of Rule 11. We affirm and modify the trial court's decision.
Authoring Judge: Judge Don R. Ash
Originating Judge:Walter C. Kurtz |
Davidson County | Court of Appeals | 10/25/00 | |
| State vs. John Vengrin
W1999-01512-CCA-R3-CD
The defendant, John Joseph Vengrin, appeals the maximum, 25-year sentence imposed upon him for the crime of second degree murder. He alleges that the trial court erroneously relied on testimony given in another matter in considering whether certain enhancement factors applied. We agree that the trial court erred in relying on matters outside the record; however, we hold that the defendant waived any objection by advocating that the court consider matters outside the record in assessing mitigating factors. Moreover, we hold that the sentence imposed was a proper one. The judgment of the trial court is affirmed.
Authoring Judge: Judge J. Curwood Witt, Jr.
Originating Judge:Robert A. Page |
Madison County | Court of Criminal Appeals | 10/25/00 | |
| Rackley vs. DeKalb Co. Fire Dept.
M2000-00885-COA-R3-CV
A purchaser of real property invited the DeKalb County Volunteer Fire Department to burn down a house on the property for training purposes. After the house was destroyed, the seller re-took possession of the property, because the buyer failed to pay the rest of the purchase price. The seller brought suit against the County for inverse condemnation and trespass. The trial court dismissed the complaint. We affirm.
Authoring Judge: Judge Ben H. Cantrell
Originating Judge:John A. Turnbull |
DeKalb County | Court of Appeals | 10/25/00 | |
| Madu vs. Madu
M1999-02302-COA-R3-CV
This appeal involves the dissolution of a three-year marriage between a naturalized citizen and a foreign national attending school on a temporary student visa. Soon after the parties were divorced by agreement in the Circuit Court for Davidson County, the foreign national sought to set the divorce aside because of its effect on her efforts to remain in the United States. The trial court declined to set the divorce aside. The foreign national asserts on this appeal that the trial court should not have declared the parties divorced and that the trial court erred by denying her motion for a new trial based on newly discovered evidence. We have determined that the record supports the trial court's decision to declare the parties divorced and that the trial court did not err when it denied the foreign national's post-trial motion. Accordingly, we affirm the judgment.
Authoring Judge: Judge William C. Koch, Jr.
Originating Judge:Muriel Robinson |
Davidson County | Court of Appeals | 10/25/00 | |
| Tennessee Protection and Advocacy, Inc., et al v. Janis
M1999-00884-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. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Reversed in part and Affirmed in part; Remanded. LOSER, SP. J., in which BIRCH, J. , and KURTZ, SP. J., joined. Carson W. Beck, Nashville, Tennessee, for the appellant, Janis Greene. Richard E. Spicer, Nashville, Tennessee, for the appellees, Tennessee Protection and Advocacy, Inc., et al. MEMORANDUM OPINION By this appeal, the employee or claimant, Janis Greene, insists the evidence preponderates against the trial court's finding that her carpal tunnel syndrome did not arise out of and in the course of her employment. The employer, Tennessee Protection and Advocacy, Inc. contends the claim is barred by the employee's failure to give timely written notice. As discussed below, the panel has concluded the trial court's order dismissing the claim as not having arisen out of and in the course of employment should be reversed; and the panel has further concluded the trial court's findings with respect to notice and the extent of the claimant's permanent partial disability should be affirmed. The employer initiated this action on September 15, 1997, seeking a declaration that the employee's claimed injury did not arise out of and in the course of employment. The employee served her answer and a counterclaim. Construing the counterclaim fairly and consistently with the evidence and arguments, we have concluded the employee was and is seeking disability and medical benefits authorized by the Workers' Compensation Act. Tenn. Code Ann. _ 5-6- 11 et seq. After a trial of all the issues on February 25, 1999, the chancellor made her findings. Paraphrased, those findings were that (1) the claimant suffered "serious" carpal tunnel syndrome, cause unknown because of insufficient medical proof, (2) timely written notice of her claimed injury was given, (3) as a result of her carpal tunnel syndrome, the claimant retained a permanent partial vocational disability of twenty-five percent to the right hand and twelve and one-half percent to the left hand, (4) her claimed medical expenses were reasonable and necessary and (5) the claimant was a credible witness. Review of findings of fact by the trial court is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). This standard requires the panel to examine in depth a trial court's factual findings and conclusions. The reviewing court is not bound by a trial court's factual findings but instead conducts an independent examination to determine where the preponderance of the evidence lies.
Authoring Judge: Loser, Sp. J.
Originating Judge:Carol Mccoy, Chancellor |
Greene County | Workers Compensation Panel | 10/24/00 | |
| State vs. Nassel Brown
W1999-01558-CCA-R3-PC
The petitioner, convicted of one count of rape of a child and sentenced to fifteen years, appeals from the trial court's order dismissing his petition for post-conviction relief. He argues that his trial counsel was ineffective for failing, inter alia, to investigate his case and for failing to interview and subpoena certain witnesses. We conclude that the petitioner has not demonstrated that the trial court erred. Therefore, we affirm the order dismissing his petition.
Authoring Judge: Judge John Everett Williams
Originating Judge:James C. Beasley, Jr. |
Shelby County | Court of Criminal Appeals | 10/24/00 |