APPELLATE COURT OPINIONS

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Mart E. Kobeck v. Murray, Inc.

01S01-9511-CV-00207
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. Plaintiff injured his neck at work in October of 1991 and subsequently underwent anterior cervical disc removal, dissection and fusion after which he did not recover. The trial judge found the plaintiff to be 8 percent vocationally impaired as a result of his work injury. We affirm the judgment of the trial court. Plaintiff had worked for Murray, Inc. for 35 years when, on October 21, 1991, he injured his neck on the job while working overhead repairing lawn mowers. The company sent him to see Dr. Norman Henderson, who then referred him to Dr. Rex Arendall, neurosurgeon, on April 1, 1992. Dr. Arendall diagnosed cervico-thoracic radiculopathy and prescribed physical therapy and pain medications, but plaintiff did not improve. On April 23, 1992, Dr. Arendall performed anterior cervical discectomy, anterior cervical fusion and microscopic dissection at C4-5 and C5-6. Post-operatively, plaintiff continued to have increasing pain and weakness in his right arm and shoulder. He also developed loss of balance. Dr. Arendall re-admitted plaintiff for investigation of the continuing symptoms, and MRI of the brain then revealed small areas of infarction. Dr. Arendall referred plaintiff to his medical practice partner and neurologist, Dr. Mary Clinton, for a second opinion, and then to another neurologist, a Dr. Rubinowicz. Neither examiner could find a neurological basis for plaintiff's problems except for the brain infarctions. Dr. Arendall stated that after the second hospitalization, plaintiff "seemed to go progressively downhill." His right arm and hand atrophied. Dr. Arendall thought that plaintiff might be exhibiting early onset symptoms of amyotrophic lateral sclerosis or multiple sclerosis, but there were no objective findings to indicate either disease. On October 21, 1992, Dr. Arendall saw the patient and opined that he was totally and permanently disabled as a result of his medical problems. He opined that 15 percent of the disability was "purely for his work-related findings." Plaintiff testified that for many years prior to his accident, he had worked without missing a day and that he had no prior medical problems that required him to 2
Authoring Judge: Senior Judge John K. Byers
Originating Judge:Hon. James L. Weatherford
Lawrence County Workers Compensation Panel 09/05/96
Frances Reynolds Kellerman v. Food Lion, Inc.

01S01-9512-CH-00226
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. In this appeal, the employer contends (1) the chancellor erred in not accepting the opinion testimony ofthe claimant's treating physician, (2) the claimant's back injury is not compensable because the evidence failed to establish that "the accident either otherwise injured her or advanced the severity of her preexisting condition, (3) that the chancellor erred in considering expert medical testimony not based on reasonable medical certainty, and (4) the award of permanent partial disability benefits is excessive. The panel concludes that the evidence fails to preponderate against the findings of the trial court. The judgment is modified as provided herein. On November 29, 1993, the claimant, Kellerman, slipped and fell in a puddle of water at work, twisting her right knee and injuring her back. She was eventually referred to Dr. Richard Bagby, who saw her on January 13, 1994 and January 2, 1994. Dr. Bagby ordered a CT scan and studied the results. He opined that the claimant reached maximum medical improvement on January 24, 1994, when she was released to return to work with some minor restrictions. The doctor further opined that she would not retain any permanent impairment. We do not find in the record the degree of certainty upon which the doctor's opinion was based. The claimant returned to Dr. Bagby on March 1, 1994, when he noted her continuing pain but did not change her restrictions from lifting more than twenty pounds or any repetitive bending, or assess any permanent impairment. The claimant was referred to Dr. Keith Brown for examination and evaluation. Dr. Brown performed additional testing which put stress on her knee and back. From his examination, particularly a positive McMurray's test, this doctor diagnosed a torn medial meniscus in the right knee joint, which, if not treated, will worsen, he said. He assigned a permanent impairment rating of five percent to the right leg, using AMA Guidelines, and added restriction from any kneeling or stooping activities. Dr. Brown further opined that the claimant's disabling back pain was permanent and causally related to the injury at work. He diagnosed circumferential disc disorder which, he said, may or may not have preexisted that injury but was aggravated by the injury, and assigned an additional permanent impairment of ten percent to the whole person, from AMA Guidelines. His testimony included the following question and answer: Q. In the opinions you have expressed, have they been based on a reasonable degree of medical certainty? 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. Jeffrey F. Stewart,
Franklin County Workers Compensation Panel 09/05/96
Woodrow Cecil Foster v. Coffee County Highway Department and Coffee County, Tennessee

01S01-9512-CH-00232
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. In this appeal, the employer questions the trial court's conclusion that the claim is not barred by Tenn. Code Ann. section 5- 6- 23, a one year statute of limitation. The employer also contends the award of permanent partial disability benefits based on forty-five percent to the body as a whole is excessive. This panel finds that the judgment should be affirmed. The action was commencedby the employee or claimant, Woodrow C. Foster, by the filing of a complaint on March 6, 1991, against the employer, Coffee County Highway Department and Coffee County, Tennessee, seeking workers' compensation benefits for injuries occurring in 1986 and 1987. The defendants served an answer raising the affirmative defense that the claim was barred by the above statute of limitation. Our 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) (1992). We accept the chancellor's relevant findings of fact as follows: "The plaintiff was a 59 year old male with a tenth grade education who, for the most part, had spent his adult life either driving a truck or loading and unloading a truck with short periods of employment as a carpenter's helper and working at a service station. Mr. Foster testified that in March, 1986, while changing a flat tire, he thought he 'broke his back,' that he went to a doctor who put a corset on him for two weeks and told him he had a 'pulled muscle.' Plaintiff went back to work and testified that he thought (the 'pulled muscle') was the only condition for which he suffered any discomfort. Plaintiff testified that in 199 he saw a doctor because his back continued to hurt. He saw Dr. Robison and Dr. Jekot, who asked him to return for another appointment but he did not let him return to work without seeing a neurosurgeon. He went to see Dr. Verne Allen...(who) performed an MRI that showed a bulging disc...(for which) he ultimately had surgery.... Plaintiff testified that he went back to work after surgery. He was off work approximately two months, but despite being given no restrictions as a result of the surgery he has constant pain out of the left side of his back and down his leg, that he presently takes steroids and walks to try to stay limber although he continues to hurt. Plaintiff testified that he continues to try to perform his job as a truck driver with the defendant Highway Department." An action by an employee to recover workers' compensation benefits for an accidental injury must be commenced within one year after the occurrence of the injury. Tenn. Code Ann. section 5-6-224(1). However, if within such one year period the employer or its insurer makes voluntary payment of benefits, the action may be commenced within one year after the cessation of benefits. Tenn. Code Ann. section 5-6-23. 2
Authoring Judge: Joe C. Loser, Jr., Retired Judge
Originating Judge:Hon. John W. Rollins,
Coffee County Workers Compensation Panel 09/05/96
State of Tennessee v. Alfred B. Rollins, et al. - Concurring

01C01-9304-CR-1282

I concur in the result reached in the majority opinion. I write separately, though, to express my strong belief that the appellant’s conduct in this case is free of any blame, given the context of the question in issue. In this respect, whether I or anyone else would have found a more circumspect way to prove the point or make a record is largely irrelevant. Likewise, whether all the evidence -- viewed in hindsight -- actually proved the points sought to be proved relative to the appellant’s question is largely irrelevant.

Authoring Judge: Judge Joseph M. Tipton
Originating Judge:Judge Walter C. Kurtz
Davidson County Court of Criminal Appeals 09/05/96
Woodrow Cecil Foster v. Coffee County Highway Department and Coffee County, Tennessee

01S01-9512-CH-00232
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. In this appeal, the employer questions the trial court's conclusion that the claim is not barred by Tenn. Code Ann. section 5- 6- 23, a one year statute of limitation. The employer also contends the award of permanent partial disability benefits based on forty-five percent to the body as a whole is excessive. This panel finds that the judgment should be affirmed. The action was commencedby the employee or claimant, Woodrow C. Foster, by the filing of a complaint on March 6, 1991, against the employer, Coffee County Highway Department and Coffee County, Tennessee, seeking workers' compensation benefits for injuries occurring in 1986 and 1987. The defendants served an answer raising the affirmative defense that the claim was barred by the above statute of limitation. Our 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) (1992). We accept the chancellor's relevant findings of fact as follows: "The plaintiff was a 59 year old male with a tenth grade education who, for the most part, had spent his adult life either driving a truck or loading and unloading a truck with short periods of employment as a carpenter's helper and working at a service station. Mr. Foster testified that in March, 1986, while changing a flat tire, he thought he 'broke his back,' that he went to a doctor who put a corset on him for two weeks and told him he had a 'pulled muscle.' Plaintiff went back to work and testified that he thought (the 'pulled muscle') was the only condition for which he suffered any discomfort. Plaintiff testified that in 199 he saw a doctor because his back continued to hurt. He saw Dr. Robison and Dr. Jekot, who asked him to return for another appointment but he did not let him return to work without seeing a neurosurgeon. He went to see Dr. Verne Allen...(who) performed an MRI that showed a bulging disc...(for which) he ultimately had surgery.... Plaintiff testified that he went back to work after surgery. He was off work approximately two months, but despite being given no restrictions as a result of the surgery he has constant pain out of the left side of his back and down his leg, that he presently takes steroids and walks to try to stay limber although he continues to hurt. Plaintiff testified that he continues to try to perform his job as a truck driver with the defendant Highway Department." An action by an employee to recover workers' compensation benefits for an accidental injury must be commenced within one year after the occurrence of the injury. Tenn. Code Ann. section 5-6-224(1). However, if within such one year period the employer or its insurer makes voluntary payment of benefits, the action may be commenced within one year after the cessation of benefits. Tenn. Code Ann. section 5-6-23. 2
Authoring Judge: Joe C. Loser, Jr., Retired Judge
Originating Judge:Hon. John W. Rollins,
Coffee County Workers Compensation Panel 09/05/96
Dodson Roberts, v. National Safety Associates, Inc.

02A01-9506-CH-00134

This is an action by Appellee, Dodson Roberts(Roberts), to recover the compensation allegedly due him from his former employer, the appellant, National Safety Associates, Inc. (NSA).

Authoring Judge: Judge David R. Farmer
Originating Judge:Chancellor Neal Small
Shelby County Court of Appeals 09/04/96
Jeannie Farrow, v. Warren G. Reed

03A01-9603-CV-00089

In this medical malpractice action, Plaintiff-Appellant, Jeannie Farrow (“Farrow” or “Plaintiff”), appeals the trial court’s judgment granting the Motion for Summary Judgment filed by Defendant-Appellee, Warren G. Reed (“Dr. Reed” or “Defendant”).

Authoring Judge: Judge David R. Farmer
Originating Judge:Judge Wheeler A. Rosenbalm
Knox County Court of Appeals 09/04/96
Jeannie Farrow v. Warren G. Reed

03A01-9603-CV-00089

In this medical malpractice action, Plaintiff-Appellant, Jeannie Farrow (“Farrow” or “Plaintiff”), appeals the trial court’s judgment granting the Motion for Summary Judgment filed by Defendant-Appellee, Warren G. Reed (“Dr. Reed” or “Defendant”).

Authoring Judge: Judge David R. Farmer
Originating Judge:Judge Wheeler A. Rosenbalm
Knox County Court of Appeals 09/04/96
Frank L. White v. Hubert A. McBride, Executor - Cocurring

02S01-9510-PB-00104

This case presents the question of whether the plaintiff, attorney Frank White,may recover attorney’s fees from the estate of Kasper McGrory. This broad question may, in turn, be divided into two specific subissues: (1) whether the contingency fee contract between White and McGrory is “clearly excessive” under Disciplinary Rule 2-106 of the Code of Professiona Responsibility, Tenn. Sup. Ct. R. 8, and is, thus, unenforceable; and (2) if the contingency fee contract is unenforceable, whether White may, nevertheless, recover attorney’s fees on a quantum meruit basis. For the reasons that follow, we hold that the contract is unenforceable and that White is not entitled to recover under the theory of quantum meruit. Because the probate court and the Court of Appeals held that White could not recover under the contract, but could recover on a quantum meruit basis, we reverse the latter part of the judgment.

Authoring Judge: Justice Frank F. Drowota, III
Originating Judge:Judge Leonard Pierotti
Shelby County Supreme Court 09/03/96
Blanche Bilbrey and Cecil Asberry v. Vestel Smithers - Concurring

01S01-9509-CH-00168

This case presents for review the right of a child born out of wedlock to  inherit from his natural father who died prior to the amendment of Tenn. Code Ann. § 31-2-105(a)(2)(B) (Supp. 1995) in 1978. The record supports the finding of paternity, but the claimant failed to establish the right to inherit as required by the statute; however, the appellant is estopped to deny the claimant's asserted interest in the decedent father's real property.

Authoring Judge: Justice Lyle Reid
Originating Judge:Chancellor Vernon Neal
Pickett County Supreme Court 09/03/96
Eli Mike and James A. Schrampfer and Jane N. Forbes, as Trustee in Bankruptcy for the Estate of David L. Osborn v. PO Group, Inc. a Tennessee Corp., James W. (Bill) Anderson III, and the Estate of Harold L. Jenkins - Concurring

01S01-9508-CH-00137

This case presents for review the decision of the Court of Appeals, affirming an award of summary judgment in favor of the defendants. The Court of Appeals held that the plaintiffs' suit charging the breach by a  majority shareh older of a fiduciary duty owed to minority shareholders is barred by the o ne year statute of limitations. This Cou rt concludes that the applicable period of limitations is three years and remands the case to the trial court to determine whether plaintiffs' action was time-barred.

Authoring Judge: Justice Lyle Reid
Originating Judge:Chancellor C. Allen High
Davidson County Supreme Court 09/03/96
Geneva Coffey v. Fayette Tubular Products Corporation

01S01-9601-CV-00003

In this retaliatory discharge action, the plaintiff, Geneva Coffey, appeals fromtwo aspects of the Court of Appeals’ judgment: (1) its suggested remittance of the punitive damage award from $500,000 to $150,000; and (2) its disallowance of the $20,000 in “front pay” awarded by the trial court. After a careful consideration of the law and the record in this case, we conclude that the Court of Appeals erred in both respects. Therefore, we reverse that court’s judgment, and reinstate, in its entirety, the judgment rendered by the trial court.
 

Authoring Judge: Justice Frank F. Drowota, III
Originating Judge:Judge John J. Maddux, Jr.
Overton County Supreme Court 09/03/96
Tracy W. Moore, Deceased, by Parent and Next of Kin, Shirley Moore; and Shirley Moore, Individually, v. James A. Prescott, II

02A01-9609-CV-00277

Plaintiff Shirley Moore, on her own behalf and on behalf of her deceased son, Tracy W. Moore, appeals the trial court’s order granting the motion for summary judgment filed by Appellee Haulers Insurance Company, Moore’s uninsured motorist carrier. In granting the motion, the trial court ruled that the automobile insurance policy issued by Haulers did not cover Moore’s claim because Moore failed to give prompt notice of the claim to Haulers as required by the policy provisions. We affirm.

Authoring Judge: Judge David R. Farmer
Originating Judge:Judge Whit A. Lafon
Henderson County Court of Appeals 09/01/96
Blanche Rene Smith v. Bruce Hardwood Floors

02S01-9512-CH-00130
This case is before the Court upon a motion for review purAppellate suant to C ourt Tenn.Clerk Code Ann. _ 5-6-225(e)(5)(B), the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference; Whereupon, it appears to the Court that the motion for review is not well- taken and should be denied; and It is, therefore, ordered that the Panel's findings of fact and conclusions of law are adopted and affirmed, and the decision of the Panel is made the judgment of the Court. Costs will be paid by the plaintiff-appellee, for which execution may issue if necessary.
Authoring Judge: Per Curiam
Originating Judge:Hon. Joe C. Morris, Chancellor
Smith County Workers Compensation Panel 08/30/96
01A01-9603-CV-00124

01A01-9603-CV-00124

Originating Judge:Bobby H. Capers
Wilson County Court of Appeals 08/30/96
Christine Callahan v. Patrick Michael Callahan

03A01-9603-CV-00116
Authoring Judge: Don T. Mcmurray
Originating Judge:Hon. BILL SWAN, JUDGE
Knox County Workers Compensation Panel 08/30/96
01A01-9604-CH-00190

01A01-9604-CH-00190

Originating Judge:Robert S. Brandt
Davidson County Court of Appeals 08/30/96
X2010-0000-XX-X00-XX

X2010-0000-XX-X00-XX
Court of Appeals 08/30/96
03C01-9511-CR-00362

03C01-9511-CR-00362

Originating Judge:Douglas A. Meyer
Hamilton County Court of Criminal Appeals 08/30/96
03C01-9510-CC-00328

03C01-9510-CC-00328

Originating Judge:D. Kelly Thomas, Jr.
Blount County Court of Criminal Appeals 08/30/96
01A01-9601-CH-00023

01A01-9601-CH-00023
Court of Appeals 08/30/96
01A01-9602-CH-00069

01A01-9602-CH-00069

Originating Judge:William B. Cain
Maury County Court of Appeals 08/30/96
01A01-9601-CH-00023

01A01-9601-CH-00023
Court of Appeals 08/30/96
The Honorable Hamilton v. Gayden, Jr., Chancellor

01A01-9605-CV-00213

Originating Judge:Hamilton V. Gayden, Jr.
Davidson County Court of Appeals 08/30/96
Reba Joyce Moody v. Phelps Security, Inc. and Fidelity and Casualty Co. of New York

02501-9509-CV-00080
This workers' compensation appeal has been referred to the Special W ork ers ' C om pe ns atio n A pp ea ls P an el of the Su pre m e C ou rt in acc ord an ce with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and rep ort ing of fin din gs of fa ct a nd co nc lus ion s o f law . Suit was filed in the Circuit Court at Memphis b y Re ba Joyce Moody as representative of the estate of her deceased h usband, James Jun ior Mo ody, against Phelps Security, Inc., the employer, and Fid elity and Ca sualty Co. of New Y ork, the em ployer's workers' comp ensation insurance carrier. The plaintiff sued for workers' compensation benefits as a result of an accidental injury tha t alle ge dly caused th e d ea th o f Jam es Jun ior M oo dy, in clud ing a po rtion o f the medical ex pe ns es inc urr ed . T he de fen da nts filed an an sw er a dm ittin g that Jam es Jun ior M oo dy s us taine d a ccid en tal inju ries g row ing o ut o f and in the cou rse of h is em ploy m en t, but they denied that these injuries resulted in the de ath of Ja m es Jun ior M oo dy. The answ er also stated that the insurance carrier had paid that portion of the medical expenses which w ere rela ted to th e in jurie s s us tain ed by James Junior Moody on or a bo ut N ov em be r 7, 1 99 2, th e d ate of th e a ccid en t. The de fen da nts filed a suggestion of death showing that Reba Joyce Moody, Administratrix, died on September 19, 1 994. James Moo dy and Deborah Ann Wolfe were appointed as successor Co - Administrators of the estate. The trial judge found in fav or o f the plain tiff and aw ard ed w ee kly be ne fits from the date of the death of the deceased on January 13, 1993 to the widow's death on September 19, 1994. The total medical expenses owing was Two Hundred and Fifty-Seven Thousand, Three 2
Authoring Judge: F. Lloyd Tatum, Special Judge
Originating Judge:Hon. Robert A. Lanier, Judge
Shelby County Workers Compensation Panel 08/30/96