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| Kenneth Paxton v. Floyd and Floyd, Inc. and Liberty Mutual Ins. Co.
01S01-9710-CV-00230
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. Fairly stated, the issues on appeal are (1) whether the employee or claimant, Paxton, gave or was excused from giving timely notice of his injury, (2) whether the employee suffered a compensable injury by accident, and (3) whether the trial judge erred in ruling on the admissibility of a doctor's report. As discussed below, the panel has concluded the judgment should be affirmed. The employee initiated this action for workers' compensation benefits resulting from an alleged back injury allegedly occurring on April 29, 1996. After a trial on the merits, the trial judge found that the employee's notice to the employer was not timely and that the employee did not suffer an injury by accident on April 29, 1996, as claimed. The trial judge expressly found the employee's testimony to be unworthy of belief. The claim was dismissed. 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. section 5-6-225(e)(2). In October of 1995, while working for another employer, the claimant injured his back lifting a cross tie. He received medical care and returned to work for the same employer. He began working for this employer, Floyd and Floyd, on December 7, 1995, and worked thirteen days between that date and April 7, 1996, when he began working full time and worked until May 26, 1996, when his employment was terminated. On July 11, 1996, his attorney sent a letter to Floyd and Floyd, advising the employer that the employee was making a claim "as a result of a work related accident which occurred on or about 1-16-95." That letter was, as the trial judge found, the first notice to the employer, but the employee had complained to co-workers of back pain. The notice was also sent to the former employer, BEC/Allwaste. On July 31, 1996, his back condition was surgically repaired. Immediately upon the occurrence of an injury, or as soon thereafter as is reasonable and practicable, an injured employee must, unless the employer has actual knowledge of the accident, give written notice of the injury to his employer. Tenn. Code Ann. section 5-6-21; McCaleb v Saturn Corp., 91 S.W.2d 412 (Tenn. 1995). For an occupational disease, except asbestos-related disease or coal worker's pneumoconiosis, benefits are not recoverable from the date of the accident to the giving of such notice and no benefits are recoverable unless such written notice is given within thirty days after the injurious occurrence, unless the injured worker has a reasonable excuse for the failure to give the required notice. Tenn. Code Ann. section 5-6-21. The written notice must state in plain and simple language the name and address of the employee, the time, place, nature and cause of the accident and must be signed by the claimant or someone acting in his behalf. Tenn. Code Ann. section 5-6-22. The only notice given in this case was defective in that it was not timely and did 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. Jim T. Hamilton, |
Maury County | Workers Compensation Panel | 01/19/99 | |
| Sharon Abbott v. Quebecor Printing
01S01-9805-CV-00087
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer, Quebecor, insists the trial judge erred in finding that the plaintiff suffered a permanent compensable injury and that the claim is barred by the last injurious injury rule. As discussed below, the panel has concluded the judgment should be affirmed. The employee or claimant, Abbott, initiated this action for the recovery of workers' compensation benefits for a gradually occurring injury to her right arm. After a trial on the merits, the trial court awarded, inter alia, permanent partial disability benefits based on twenty-five percent to the right arm. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. section 5-6-225(e)(2). The claimant began working for this employer in March of 1994, feeding loads of paper into feeding pockets to make magazines. She worked four twelve hour shifts and was off for three days, then worked three twelve hour shifts and was off for four days. From the repetitive use of her right hand and arm, she gradually developed disabling pain and was referred by the employer to Dr. Cooper Beazley, who prescribed steroid injections. She was unable to work for about four weeks. Shortly after returning to work, she was involved in an automobile accident. After that accident, she did not return to work for the employer. Dr. Beazley diagnosed lateral epicondylitis or tennis elbow. He was equivocal as to whether the injury was permanent. Dr. Dewey Thomas, who examined and evaluated the claimant, assigned a permanent impairment rating of ten percent to the right arm. His testimony established a causal connection between the injury and the repetitive use of the claimant's right arm at work and was supported by the lay proof offered by the claimant. The only evidence offered at trial by the employer was the testimony of its insurance administrator, who testified that the claimant did not complain after the steroid injections. At the time of the trial, the claimant was working with pain for another employer. She testified that her disability had not increased as a result of her new job. Where a condition develops gradually over a period of time resulting in a definite, work-connected, unexpected, fortuitous injury, it is compensable as an injury by accident. Brown Shoe Co. v. Reed, 29 Tenn. 16, 35 S.W.2d 65 (1961). Trial courts are not required to accept the opinion of a treating physician over any other conflicting expert medical testimony. The trial judge did not abuse his discretion by accepting the testimony of Dr. Thomas concerning causation and permanency. The first issue is resolved in favor of the claimant. The successive or "last injurious" injury rule is that where an employee 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. James E. Walton, |
Montgomery County | Workers Compensation Panel | 01/19/99 | |
| State vs. Steve Paige
W2001-03045-CCA-R3-CD
In an indictment returned by the Shelby County Grand Jury on August 9, 2001, Defendant, Steve Paige, was charged with two counts of aggravated assault. The indictment alleged that both offenses occurred on January 16, 1999. At a hearing on December 6, 2001, the criminal court, sua sponte, dismissed the indictment because of the State's failure to prosecute. In its order of dismissal, the criminal court found that Defendant was arrested on January 16, 1999, the case was bound over to the grand jury on May 25, 1999, but he was not indicted until twenty-seven months later. The trial court further found that Defendant was arraigned on November 13, 2001, but the State did not have a file on the case and it had to be continued twice for that reason. When the case was called on December 6, 2001, the State could still not produce a file on the case. Accordingly, the trial court dismissed the case with prejudice for the State's failure to prosecute pursuant to Rule 48(b) of the Tennessee Rules of Criminal Procedure. The State appealed. After review, we affirm the trial court's order dismissing the case, but reverse that portion of the order dismissing the case with prejudice, and remand this case for the trial court to enter an amended order dismissing the case without prejudice.
Authoring Judge: Judge Thomas T. Woodall
Originating Judge:James C. Beasley, Jr. |
Shelby County | Court of Criminal Appeals | 01/16/99 | |
| Reba Rector v. Dacco
01S01-9804-CV-00083
Authoring Judge: William H. Inman, Senior Judge
Originating Judge:Hon. John Maddux, |
Putnam County | Workers Compensation Panel | 01/15/99 | |
| Gary Harris vs. State
03C01-9803-CR-00085
Originating Judge:Lynn W. Brown |
Unicoi County | Court of Criminal Appeals | 01/15/99 | |
| State vs. Wembley
03C01-9803-CC-00088
|
Blount County | Court of Criminal Appeals | 01/15/99 | |
| Dennis/Cheryl Caire vs. McLemore Food Stores
02A01-9804-CV-00103
Originating Judge:Robert A. Lanier |
Shelby County | Court of Appeals | 01/15/99 | |
| State vs. Holloway
03C01-9712-CC-00533
Originating Judge:W. Lee Asbury |
Anderson County | Court of Criminal Appeals | 01/15/99 | |
| State vs. Strickland
03C01-9801-CC-00556
|
Blount County | Court of Criminal Appeals | 01/15/99 | |
| Greg Morgan vs. State
03C01-9611-CR-00404
Originating Judge:Mayo L. Mashburn |
Bradley County | Court of Criminal Appeals | 01/15/99 | |
| Brooks vs Brooks, Jr.
03A01-9801-CH-00008
|
Court of Appeals | 01/14/99 | ||
| Edmondson vs. Solomon
01A01-9802-CV-00097
Originating Judge:Walter C. Kurtz |
Davidson County | Court of Appeals | 01/14/99 | |
| Clark & Associates Architects, Inc. vs. Lewis
01A01-9802-CH-00088
Originating Judge:Carol A. Catalano |
Montgomery County | Court of Appeals | 01/14/99 | |
| Sara Evelyn Evans (Young) v. Bobby Hugh Young, D.K. Hailey Wrecking Company, Inc. and Levy Industrial Contractors, Inc.
01A01-9711-CV-00638
Intervenors D. K. Hailey WreckingCompany (Hailey Wrecking) and Levy Industrial Contractors, Inc. (Levy Industrial) appeal an order of the trial court requiring them to pay the attorney fees of Plaintiff Sara Evelyn Evans incurred in a proceeding to enforce a judgment obtained by Ms. Evans against Bobby Hugh Young. For the reasons stated below, we affirm the ruling of the trial court.
Authoring Judge: Judge David R. Farmer
Originating Judge:Judge Muriel Robinson |
Davidson County | Court of Appeals | 01/14/99 | |
| Alexander vs Armentrout, Jr.
03A01-9807-CV-00205
|
Washington County | Court of Appeals | 01/14/99 | |
| Hampton vs. TN Truck Sales
01A01-9712-CH-00721
Originating Judge:Irvin H. Kilcrease, Jr. |
Davidson County | Court of Appeals | 01/14/99 | |
| Spruce vs Spruce
03A01-9807-CV-00211
|
Knox County | Court of Appeals | 01/14/99 | |
| Palmer vs. So. Central Correctional Facility Disciplinary Bd.
M1999-01611-COA-R3-CV
Petitioner, an incarcerated prisoner at South Central Correctional Facility, appeals the dismissal by the trial court of his petition for a writ of certiorari to review a disciplinary decision made by the Correctional Facility Disciplinary Board and approved by the Tennessee Department of Correction ("T.D.O.C."). The defendant filed a Rule 12.02(6), Tenn. R. Civ. P., motion asserting the failure of Petitioner to state a claim for which relief may be granted. The trial court sustained this motion to dismiss. We reverse.
Authoring Judge: Judge William B. Cain
Originating Judge:Robert L. Holloway |
Wayne County | Court of Appeals | 01/13/99 | |
| State vs. Aaron Carroll
02C01-9805-CR-00140
Originating Judge:Bernie Weinman |
Shelby County | Court of Criminal Appeals | 01/13/99 | |
| State vs. Connie Wilson
02C01-9706-CC-00217
|
Madison County | Court of Criminal Appeals | 01/13/99 | |
| R & E Properties vs Jones
03A01-9804-CV-00133
|
Court of Appeals | 01/13/99 | ||
| State vs. Roy Keough
02C01-9708-CR-00317
|
Shelby County | Court of Criminal Appeals | 01/13/99 | |
| State vs. Grace Matthews
02C01-9801-CR-00013
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Shelby County | Court of Criminal Appeals | 01/13/99 | |
| State vs. Howard Epps
02C01-9710-CR-00410
|
Shelby County | Court of Criminal Appeals | 01/13/99 | |
| Woods vs Walldorf
03A01-9803-CH-00085
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Court of Appeals | 01/13/99 |