| State of Tennessee v. James Mario Starnes
M2002-01450-CCA-R3-CD
The Appellant, James Mario Starnes, was indicted by the Bedford County Grand Jury for first degree murder and especially aggravated robbery. Starnes pled guilty to attempted second degree murder and especially aggravated robbery. Following a sentencing hearing, Starnes received concurrent sentences of ten years, nine months for attempted second degree murder and twenty-five years for especially aggravated robbery. Starnes now appeals his especially aggravated robbery conviction, contending that the evidence is insufficient to establish his guilt for that offense. Because the error complained of was waived as a matter of law by Starnes’ plea of guilty, this issue is not reviewable upon direct appeal. Accordingly, this appeal is dismissed.
Authoring Judge: Judge David G. Hayes
Originating Judge:Judge W. Charles Lee |
Bedford County | Court of Criminal Appeals | 03/13/03 | |
| State of Tennessee v. Melissa Ann Brewer
M2002-01982-CCA-R3-CD
The defendant appeals her sentence of three years imprisonment for the sale of less than .5 grams of cocaine, a Class C felony. The defendant argues she is a favorable candidate for alternative sentencing. The record supports the defendant's assertion that she is entitled to an alternative sentence. The defendant is sentenced to three years in split confinement, with thirty (30) days incarceration and the remainder on supervised probation. We remand this judgment to determine if the defendant continues to hold full-time employment. If the defendant is employed full-time, she is to serve her thirty (30) days in periodic confinement.
Authoring Judge: Judge John Everett Williams
Originating Judge:Judge John W. Rollins |
Coffee County | Court of Criminal Appeals | 03/13/03 | |
| Charlotte McCall v. National Health
M2001-03166-SC-R9-CV
We granted interlocutory appeal in this workers' compensation case, and in the companion case of Shelton v. ADS Environmental Services, pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. These cases present the following issues: whether the trial court has the authority to initiate temporary benefits pre-trial and, assuming the trial court has this authority, whether it must hold a full evidentiary hearing prior to initiating temporary benefits. After careful examination of the workers' compensation statutes and the applicable case law, we hold that the trial court has the power to initiate temporary workers' compensation benefits prior to trial and that it may do so without first holding a full evidentiary hearing.
Authoring Judge: Justice Adolpho A. Birch, Jr.
Originating Judge:Robert E. Corlew, III |
Rutherford County | Supreme Court | 03/13/03 | |
| Bellsouth Advertising and Publishing v. Commissioner of Revenue
M2000-03091-SC-R11-CV
In this use tax case, we address the issue of whether or not the plaintiff should receive a credit under Tennessee law for sales tax it paid to the State of Alabama on the purchase of photocompositions used in printing telephone directories that were later distributed in Tennessee. Under Tennessee Code Annotated section 67-6-203(a) (1998), a use tax is levied at the rate of six percent (6%) of the cost price of each item or article of tangible personal property when the same is not sold but is used, consumed, distributed, or stored for use or consumption in this state; provided, that there shall be no duplication of the tax. (Emphasis added). To avoid duplication of the tax, Tennessee Code Annotated section 67-6-507(a) (1998) provides a credit for like taxes paid to other states on tangible personal property. The trial court and the Court of Appeals both found that the plaintiff was not owed a credit for sales tax paid to Alabama for the photocompositions, since there was no "like tax" paid on the telephone directories. We conclude that the plaintiff is entitled to a credit because the cost of the photocompositions on which the Alabama sales tax was paid is included in the cost of the directories on which Tennessee is seeking to impose a use tax. Accordingly, we reverse the judgments of the trial court and the Court of Appeals and grant summary judgment to the plaintiff.
Authoring Judge: Justice Frank F. Drowota, III
Originating Judge:Claudia C. Bonnyman |
Davidson County | Supreme Court | 03/12/03 | |
| State of Tennessee v. Charles Eugene Jones
E2001-01639-CCA-R3-CD
The defendant, Charles E. Jones, pled guilty to possession of marijuana with intent to sell or deliver, possession of drug paraphernalia, and unlawful possession of a weapon. For these convictions, the trial court classified the defendant as a Range I standard offender and ordered him to serve an aggregate one year sentence, consisting of concurrent sentences of one year for his possession of marijuana with intent to sell or deliver conviction, eleven months and twenty-nine days for his possession of drug paraphernalia conviction, and thirty days for his unlawful possession of a weapon conviction. The state agreed to suspend the two latter sentences, and the trial court sentenced the defendant to serve four years of probation and one year of incarceration, which was to be suspended after the defendant served ninety days in the county jail. The defendant now appeals his sentence, alleging (1) that the trial court erroneously modified his plea agreement with the state after it had been submitted to the trial court for approval, (2) that the trial court improperly denied his request to serve the entirety of his sentence on probation, and (3) that the trial court improperly weighed and applied various enhancement and mitigating factors. After reviewing the record, we find that none of the defendant's allegations merit relief and therefore affirm the defendant's sentence.
Authoring Judge: Judge Jerry L. Smith
Originating Judge:Judge Phyllis H. Miller |
Sullivan County | Court of Criminal Appeals | 03/12/03 | |
| Is, As Stated In The Opinion, And As It Is Stated In Ray v. Ray, 83 S.W.2D 726 (Tenn. Ct. App. 2001).
05-00-024-CC
Originating Judge:A. Andrew Jackson |
Dickson County | Court of Appeals | 03/11/03 | |
| Rudy Ochoa v. Peterbilt Motor Company
M2002-00410-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 employer questions the trial court's findings as to compensability and extent of vocational disability. As discussed below, the panel has concluded the evidence fails to preponderate against the findings of the trial court. Tenn. Code Ann. _ 5-6-225(e) (22 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 JOHN K. BYERS, SR. J., joined. Terry L. Hill and Stacey Billingsley Cason, Nashville, Tennessee, for the appellant, Peterbilt Motors Company William Joseph Butler and E. Guy Holliman, Lafayette, Tennessee, for the appellee, Rudy Ochoa, Jr. MEMORANDUM OPINION The employee or claimant, Mr. Ochoa, initiated this civil action to recover workers' compensation benefits for an allegedly work related injury by accident. The employer denied liability. After a trial on the merits, the trial court awarded, among other things, permanent partial disability benefits based on 4 percent to the body as a whole. The employer 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) (22 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:J. O. Bond, Judge |
Wilson County | Workers Compensation Panel | 03/11/03 | |
| David Norman v. Melissa Norman
M2002-01084-COA-R3-CV
This extraordinary appeal arises from the trial court's denial of Husband's petition to reduce child support and alimony. The trial court found there was no significant variance of fifteen percent (15%) to modify child support. The trial court also determined that there was no justification for a decrease in alimony payments. The trial court reserved the issues relating to unclean hands and attorney fees. The parties raise multiple issues on appeal. For the following reasons, we vacate in part, reverse in part and remand.
Authoring Judge: Presiding Judge Alan E. Highers
Originating Judge:Russell Heldman |
Williamson County | Court of Appeals | 03/11/03 | |
| Mill Creek Associates v. Jackson Foundation
M2001-02811-COA-R3-CV
This is an unjust enrichment case. The plaintiff design firm was contacted by the defendant foundation to develop designs and a budget for the construction of a science theater. The chief designer of the firm worked on the project and presented a proposal to the foundation. The foundation neither accepted nor rejected the design firm's proposal. Instead, the foundation hired the design firm's chief designer. Part of the designer's duties with the foundation was to work on the science theater project "in house." The foundation refused to pay the design firm a fee for its work on the project. The design firm then sued the foundation on a theory of unjust enrichment for the work performed on the project while the chief designer was still at the firm. The trial court found that since the project was never completed, the preliminary designs did not confer a value on the foundation and, consequently, the foundation had not been unjustly enriched. The design firm now appeals. We reverse, finding that the work performed by the design firm constituted a benefit to the foundation, and that it would be unjust for the foundation to retain that benefit without paying the design firm for the value of the benefit.
Authoring Judge: Judge Holly M. Kirby
Originating Judge:Leonard W. Martin |
Dickson County | Court of Appeals | 03/11/03 | |
| 05-00-024-CC
05-00-024-CC
Originating Judge:A. Andrew Jackson |
Dickson County | Court of Appeals | 03/11/03 | |
| Is, As Stated In The Opinion, And As It Is Stated In Ray v. Ray, 83 S.W.2D 726 (Tenn. Ct. App. 2001).
05-00-024-CC
Originating Judge:A. Andrew Jackson |
Dickson County | Court of Appeals | 03/11/03 | |
| Bobby William Smith v. Findlay Industries,
M2002-01315-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 his motion for post-judgment interest. As discussed below, the panel has concluded the judgment denying interest should be reversed and the cause remanded for an award of interest from the date of entry of the original judgment. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Chancery Court Reversed and Remanded JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, J., and JOHN K. BYERS, SR. J., joined. Barry H. Medley and Frank D. Farrar, McMinnville, Tennessee, for the appellant, Bobby William Smith Patrick A. Ruth, Nashville, Tennessee, for the appellee, Findlay Industries/ Gardner Division MEMORANDUM OPINION In the first appeal of this case, this court affirmed the judgment but remanded the cause to the trial court for a determination of the employee's compensation rate. On remand, the trial court corrected the employee's correct compensation rate to $287.58. The judgment was satisfied shortly thereafter. However, the employee 's motion for post-judgment interest was denied. The employee has appealed contending he should be awarded interest. We agree. Conclusions of law are reviewed de novo without a presumption of correctness. Nutt v. Champion Intern. Corp., 98 S.W.2d 365, 367 (Tenn. 1998). The issue before us is one of law and we have reviewed it accordingly. The Workers' Compensation Act expressly requires that it be given "equitable construction" and declares itself to be a remedial Act. Tenn. Code Ann. _ 5-6-116. 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, 455 (Tenn. 1999). In a workers' compensation case, if an appeal is taken, interest must be computed from the date the judgment was entered by the trial court. Tenn. Code Ann. 5-6-225(g) (1) (22 Supp.); McClain v. Henry I. Siegel Co., 834 S.W.2d 295 (Tenn. 1992). We find no merit in the appellee's contention that the statute is abrogated by the fact that the judgment was modified by the previous appeal. Construing the statute as required, its language is plain. By it, the claimant is entitled to interest from the date of entry of judgment by the trial court until the judgment was paid. The requirement encourages employers to pay disability benefits in a timely fashion. Moreover, the determination of the correct compensation rate could and should have been known to the employer from its own records; and the employer should have paid benefits at that rate. By failing to do so, the employer accepted the risk of having to pay interest. For those reasons, the judgment of the trial court disallowing interest is reversed and the cause remanded for entry of a judgment consistent with this opinion. Costs are taxed to the appellee. ___________________________________ JOE C. LOSER, JR. -2-
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:J. Richard McGregor, Special Master |
Smith County | Workers Compensation Panel | 03/11/03 | |
| State of Tennessee v. Shani Carr
M2002-02261-CCA-R3-CD
The defendant, Shani Carr, appeals as of right from her three-year jail sentence imposed by the Coffee County Circuit Court following her guilty plea to manufacturing methamphetamine, a Class C felony. She contends that the trial court should not have sentenced her to incarceration based upon the need for deterrence because the record is devoid of proof for such need. We agree, reverse the trial court's sentence of incarceration, and sentence the defendant to split confinement.
Authoring Judge: Judge Joseph M. Tipton
Originating Judge:Judge John W. Rollins |
Coffee County | Court of Criminal Appeals | 03/11/03 | |
| Hoover, Inc. v. Metro Nashville Board of Zoning Appeals
M2001-00924-COA-R3-CV
This is the fourth appeal from a zoning board's denial of a conditional use permit. In April 1992, the petitioner stone processing company filed an application with the respondent zoning board for a conditional use permit to operate a rock quarry. After years of litigation, the board issued findings of fact and denied the petitioner's application. The application was denied in part because the reclamation plan in the petitioner's proposal used water as fill material, contrary to the specification in the applicable ordinance that solids be used as fill material. The petitioner filed a petition for a writ of certiorari, arguing that the board's decision was arbitrary and capricious because reclamation plans using water as fill material had been approved in the past. The trial court denied the writ and upheld the board's decision. The stone processing company appealed. We affirm, finding that the board's decision was not arbitrary or capricious, and that material evidence supported the board's decision.
Authoring Judge: Judge Holly M. Kirby
Originating Judge:Carol L. Mccoy |
Davidson County | Court of Appeals | 03/11/03 | |
| Jeffrey Camporal v. Richard Ford
M2002-01409-COA-R3-CV
This case involves a dispute arising from a Promissory Note executed by and between the Appellant/Maker and Appellee/Payee. Specifically, Appellant asserts that he signed the Note in a representative capacity and, therefore, he is not personally liable on the Note. The Circuit Court of Franklin County granted Appellee's Motion for Summary Judgment, entering a Judgment against Appellant for principal, interest, and costs. Appellant appeals from this Judgment. We affirm.
Authoring Judge: Judge W. Frank Crawford
Originating Judge:Thomas W. Graham |
Franklin County | Court of Appeals | 03/11/03 | |
| Ruth Louise Winchester v. John Doe Insurance Company,
M2002-00028-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 employer questions the trial court's findings as to permanency and extent of disability and insists "the trial court erred in its application of the concurrent injury rule." As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR., SP. J., in which FRANK F. DROWOTA, III, C. J., and JOHN K. BYERS, SR. J., joined. B. Timothy Pirtle and Mary Little, McMinnville, Tennessee, for the appellants, John Doe Insurance Company and Findlay Industries/Gardner Manufacturing Division Barry H. Medley, McMinnville, Tennessee, for the appellee, Ruth Louise Winchester MEMORANDUM OPINION The employee or claimant, Ms. Winchester, initiated this civil action to recover workers' compensation benefits for injuries allegedly arising out of and in the course of her employment with the employer, Findlay Industries. The trial court awarded, among other things, permanent partial disability benefits based on 4 percent to the body as a whole and 15 percent to each hand. The employer has appealed. Appellate review is de novo upon the record of the trial court, accompanied bya presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2) (22 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:John J. Maddux, Jr., Judge |
Chester County | Workers Compensation Panel | 03/10/03 | |
| State of Tennessee v. Scott Benn
E2001-01958-CCA-R3-CD
The defendant, Scott Benn, who was originally charged with felony murder and aggravated child abuse, was convicted of one count of aggravated child abuse. The trial court imposed a sentence of twenty-five years. In this appeal, the defendant asserts (1) that the trial court erred by failing to instruct the jury on the lesser included offenses of felony murder and aggravated child abuse; (2) that the trial court erred by admitting certain evidence; and (3) that the sentence is excessive. Although the trial court erred by failing to instruct on the lesser included offenses, the error can be classified as harmless beyond a reasonable doubt. The judgment is, therefore, affirmed.
Authoring Judge: Presiding Judge Gary R Wade
Originating Judge:Judge Stephen M. Bevil |
Hamilton County | Court of Criminal Appeals | 03/10/03 | |
| Delivetrick Dewon Blocker v. State of Tennessee
E2002-00036-CCA-R3-PC
The petitioner, Delivetrick Dewon Blocker, appeals the denial of his petition for post-conviction relief. In this appeal, he contends that he was denied the effective assistance of counsel at trial. The judgment of the trial court is affirmed.
Authoring Judge: Presiding Judge Gary R Wade
Originating Judge:Judge Douglas A. Meyer |
Hamilton County | Court of Criminal Appeals | 03/10/03 | |
| Lanny Bernard v. Active USA, Inc.
M2002-00663-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 employer questions the trial court's findings as to the extent of vocational disability. As discussed below, the panel has concluded the evidence fails to preponderate against the findings of the trial court. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR., SP. J., in which FRANK F. DROWOTA, III, C. J., and JOHN K. BYERS, SR. J., joined. Luther E. Cantrell, Jr., Nashville, Tennessee, for the appellant, Active USA, Inc. Andrew J. Blackwell, III, Madison, Tennessee, for the appellee, Lannie Bernard MEMORANDUM OPINION The employee or claimant, Mr. Bernard, initiated this civil action to recover workers' compensation benefits. Following a trial on November 26, 21, the trial court awarded, among other things, permanent partial disability benefits based on 45 percent to the right arm. The employer 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) (22 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:John H. Gasaway, III, Judge |
Robertson County | Workers Compensation Panel | 03/10/03 | |
| State of Tennessee v. Donald E. Bryant
E2002-00690-CCA-R3-CD
The Appellant, Donald E. Bryant, entered guilty pleas to the offenses of evading arrest, class D felony theft, misdemeanor theft, aggravated burglary, aggravated assault, and two violations of the Motor Vehicle Habitual Offender Act (MVHO). Under the terms of the plea agreement, Bryant received an effective twenty-year sentence as a range II multiple offender for these crimes. The plea agreement provided that the manner of service of the sentences would be submitted to the trial court. Following the sentencing hearing, the trial court ordered the sentences be served in the Department of Correction. On appeal, Bryant argues that the trial court erred in failing to grant him a sentence of community corrections. Finding this argument without merit, the judgment of the Blount County Circuit Court is affirmed.
Authoring Judge: Judge David G. Hayes
Originating Judge:Judge D. Kelly Thomas, Jr. |
Blount County | Court of Criminal Appeals | 03/10/03 | |
| State of Tennessee v. Charles David Long
M2002-01608-CCA-R3-CD
Upon his plea of guilty, the Defendant was convicted of operating a motor vehicle after having been ordered not to under the terms of the Motor Vehicle Habitual Offenders Act. For this Class E felony, the Defendant was sentenced as a Range II multiple offender to serve four years in the Department of Correction. In this appeal, the Defendant argues that the trial court erred by not allowing his sentence to be served in community corrections. We affirm the judgment of the trial court.
Authoring Judge: Judge David H. Welles
Originating Judge:Judge J. Curtis Smith |
Franklin County | Court of Criminal Appeals | 03/07/03 | |
| State of Tennessee v. Louis Turner
M2002-01000-CCA-R3-CD
The defendant challenges the sufficiency of the evidence after being convicted by a Davidson County jury of premeditated first degree murder and sentenced to life imprisonment. We affirm the judgment of the trial court.
Authoring Judge: Judge Joe G. Riley
Originating Judge:Judge Seth W. Norman |
Davidson County | Court of Criminal Appeals | 03/07/03 | |
| State of Tennessee v. Roger D. Harrison
M2002-00603-CCA-R3-CD
The Appellant, Roger D. Harrison, was convicted, following a bench trial, of DUI, second offense. On appeal, Harrison challenges his conviction upon grounds that: (1) the trial court erred by denying his motion to suppress evidence of driving under the influence because there was insufficient probable cause to stop his vehicle and his pre-arrest period of detention was excessive and unreasonable, and (2) the evidence was insufficient to support his conviction. Although not raised as an issue on appeal, we find it necessary to address the question of whether a federal law enforcement officer, when acting beyond his assigned federal duties and jurisdiction, may lawfully stop or seize a person who commits a state traffic offense in his presence. After review, we find the federal officer in this case had state authority to stop Harrison's vehicle. Moreover, finding Harrison's issues on appeal without merit, the judgment of the trial court is affirmed.
Authoring Judge: Judge David G. Hayes
Originating Judge:Judge Timothy L. Easter |
Williamson County | Court of Criminal Appeals | 03/07/03 | |
| State of Tennessee v. Carlos Monte Waters and Laraiel J. Winton
E2001-00882-CCA-R3-CD
The defendants appeal their convictions for especially aggravated kidnapping and attempted aggravated robbery, as well as their twenty-five-year sentences. They claim there was insufficient evidence to support their convictions for kidnapping, the statutes upon which they were convicted are unconstitutional, they were denied a speedy trial, their trial counsel was ineffective, and their sentences are excessive. Winton contends that he had a plea agreement with the State and the prosecution committed prosecutorial misconduct by changing the terms of that agreement. After careful review, we affirm the judgments of the trial court.
Authoring Judge: Judge John Everett Williams
Originating Judge:Judge Ray L. Jenkins |
Knox County | Court of Criminal Appeals | 03/06/03 | |
| Janine Merryman v. Aqua Glass Corporation
W2001-02897-SC-WCM-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. _5-6-285 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the defendant employer Aqua Glass Corporation contends the evidence preponderates against the trial court's finding of a compensable back injury and an award of twenty- six percent (26%) permanent partial disability to the body as a whole. 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 Chancery Court Affirmed W. MICHAEL MALOAN, SP. J., in which JANICE M. HOLDER, J. and JOE C. LOSER, JR., SP. J., joined. Steven S. Maroney, Amber A. Edwards, Jackson, Tennessee, for appellant, Aqua Glass Corporation Scott G. Kirk, Jackson, Tennessee, for the appellee, Janine Merryman MEMORANDUM OPINION The plaintiff, Janine Merryman (Merryman) was forty-six (46) years old at trial. She graduated from high school and earned a Bachelor's Degree in Religious Arts and Theology. She has a commercial truck driver's license and a certificate for training in computer pattern making. Her prior work experience includes a waitress, waitress trainer, receptionist, dental surgical assistant, cashier, and pattern maker. Merryman began working for Aqua Glass in the production department as a roller and later as a sprayer. She testified she fell at work on November 18, 1996, and hurt her low back, left hip and knee. She felt a pop in her lower back and had a hot pain shoot down her left leg. After giving notice of the accident, she continued to work that day and did not miss any work thereafter. Merryman continued to have pain in her hip and leg and requested to see a doctor. She was referred to Dr. Micky Smith in Savannah, who referred her to Dr. Keith Nord in Jackson. Dr. Nord saw her on March 17, 1997 and took a history of an accident at work but no fall and complaints of hip and knee pain. His physical examination of her back and left leg did not disclose a ruptured disc or lateral meniscus tear in her knee. Dr. Nord diagnosed left hip greater trochanteriz bursitis and released her to work with no restrictions on March 31, 1997. Dr. Nord was of the opinion she had reached maximum medical improvement on February 4, 1998, and assigned no impairment to her back and a five percent (5%) permanent impairment to her left lower extremity. Prior to February 4, 1998, Dr. Nord testified Merryman did not complain of back pain. Merryman continued to see Dr. Nord for hip and knee pain. On her last visit of October 14, 1998, Dr. Nord's office notes state Merryman complained of back pain which Dr. Nord diagnosed as a lumbosacral strain. Merryman testified she told Dr. Nord of her back pain throughout her treatment. Merryman saw Dr. Claiborne Christian on September 29, 1999, for a second opinion. Dr. Christian took a history of a slip and fall at work with injuries to the low back and left extremity and complaints of continued back pain. An MRI did not reveal any abnormalities in her lumbar spine but an X-ray showed early degenerative changes at the L5-S1 level. On her last visit of December 16, 1999, Dr. Christian agreed with Dr. Nord and assigned five percent (5%) impairment for her knee injury and no impairment for her back. Dr.Christian did not find any evidence of spondylolisthesis in Merryman's back. When asked about Dr. Boals' finding of spondylolisthesis, Dr. Christian stated "It is just not consistent with my understanding of her injury which was a slip and fall at work and not a fall off a building or a high speed car accident." Dr. Joseph Boals evaluated Merryman on January 17, 21. Dr. Boals agreed Merryman had a five percent (5%) impairment to her left leg, but was of the opinion the fall at work had aggravated a pre-existing congenital spondylolisthesis at the L5-S1 level in her lower back and assigned a twenty-three percent (23%) permanent impairment to the body as a whole. Dr. Boals states in his notes: "For some reason, it seems the physicians missed this diagnosis (spondylolisthesis)." Dr. Boals assigned permanent restrictions of no prolonged walking, standing, stooping, climbing, repetitive bending or twisting of her back and stated he did not think Merryman could work as an over the road truck driver. Merryman testified she did not have any back problems prior to her fall at work in November 1996, but now has persistent pain in her low back, left hip and knee. She takes prescription pain medication as needed and she would be able to do her previous employment but with difficulty. Merryman left Aqua Glass in October 2 and began in May 21 working with her husband as an over the road truck driver with "one hundred percent (1%) no touch freight." She testified she can no longer ride her motorcycle, bowl, play tennis, or pick up her grandson. -2-
Authoring Judge: W. Michael William Michael Maloan, Special Judge
Originating Judge:Martha Brasfield, Chancellor |
McNairy County | Workers Compensation Panel | 03/06/03 |
