APPELLATE COURT OPINIONS

Nikki F. Nelson v. Magnetic Separation Systems, Inc., and

M1999-02009-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 employee contends the Chancellor erroneously: [1] considered as substantive evidence the medical report of Dr. Miller; [2] failed to find her elbow, shoulder, neck and spine disabilities were caused by her work, and therefore [3] rendered an inadequate award. As discussed below, the panel concludes that the parties offered voluminous medical records, including those of Dr. Miller, which were, without objection or limitation, treated by the parties throughout the trial as substantive evidence. The chancellor properly treated those reports as substantive evidence. The panel further concludes the chancellor's decision limiting the award to work-related disability to the hands and wrists is supported by a preponderance of the evidence, and that the award of 2 percent disability to both arms should be affirmed in all respects. Tenn. Code Ann. _ 5-6-225(e)(3) Appeal as of Right; Judgment of the Chancery Court Affirmed. JOHN A. TURNBULL, Sp. J., in which FRANK F. DROWOTA , III, and FRANK G. CLEMENT, JR.,, Sp.J., joined. Peter D. Heil and Michael A. Friedland, Alan Wise, Stillman, Karr, & Wise, Nashville, TN, for the appellant, Nikki F. Nelson Sean Antone Hunt, Spicer, Flynn & Rudstrom, PLLC, Nashville, TN, for the appellees, Magnetic Separation Systems, Inc. and Travelers Insurance Co. MEMORANDUM OPINION Nikki Nelson worked for Magnetic Separation Systems as an electronics technician, a job which included assembling electronic devices. Her job included some highly repetitive work with screwdrivers and other hand tools. There is a significant dispute in the testimony and other evidence as to whether the tasks required hand and wrist activity which were both forceful and repetitive. Live demonstrations of the tasks required and a video tape of the assembly work were a part of the evidence at trial. Ms. Nelson was not a happy employee. Her 18 month tenure with her employer was marked with numerous inter-office memos demonstrating a deteriorating relationship with her supervisors, and dissatisfaction by the employer with the quantity and quality of Ms. Nelson's work. During her last months of work for MMS, Ms. Nelson began having hand and wrist problemsand reported: "My hands and wrists were hurting from doing coil bobbins all day. Normally I would work until my hands fell off, but being put on 3 days probation and all, my husband told me to go to the doctor." The first among many doctors who treated Ms. Nelson was Dr. David McCoy, her family doctor, who first saw her on February 5, 1995. Clinical testing and the history related by Ms. Nelson caused Dr. McCoy to form the opinion that she had work-related carpal tunnel syndrome. Ms. Nelson then selected Dr. Jack Miller, an orthopaedic surgeon, from a list of doctors furnished by MMS. Dr. Miller treated her from February 14, 1995 until September, 1996. On his initial examination, Dr. Miller, based on Ms. Nelson's complaints of rather severe pain in both wrists together with positive Phalen sign and Tinel sign, diagnosed carpel tunnel syndrome and referred her to a neurologist for EMG testing. Dr. Miller was "shocked" that Ms. Nelson's initial EMG was normal and elected not to perform carpel tunnel release surgery at that time, but instead, Dr. Miller treated Ms. Nelson conservatively with physical therapy and cortisone injections. Dr. Miller directed that she not work. When Ms. Nelson's symptoms did not improve, Dr. Miller, in March, 1995, thought "carpel tunnel release is going to be justified, being recommended even though EMG's are normal." The employer then referred Ms. Nelson to Dr. Stephen Pratt for a second opinion. Dr. Pratt was "most certain that it is not carpel tunnel syndrome" and did not recommend carpel tunnel release surgery. Upon receiving Dr. Pratt's report, Dr. Miller elected not to proceed with surgery at that time. Dr. David Gaw did an independent medical exam in October, 1995, and agreed with Dr. Miller that Ms. Nelson had carpal tunnel syndrome, and recommended that she have surgery, even without a positive EMG. Dr. Miller again examined Ms. Nelson in October of 1995, and "strongly recommended carpal tunnel release" because of her persistent, long-standing complaints and clinical symptoms. Not satisfied to authorize surgery, the worker's compensation insurer, Travelers, sought a fourth opinion from Dr. Michael Milek who examined Ms. Nelson in January, 1996. Dr. Milek found "classic" carpel tunnel compression phenomena" and opined that "in all likelihood, she does have bilateral carpel tunnel compression." He recommended a repeat electrical study, and if "the electrical study is abnormal, then I would recommend carpel tunnel release." Finally, in May, 1995, surgery was authorized by Travelers, and bilateral carpel tunnel release surgery was performed on May 8, 1996, by the company doctor, Dr. Jack Miller, who noted during surgery that "the median nerve did not appear to be significantly altered." In subsequent visits in May, June, July, September of 1996, Ms. Nelson reported serially to Dr. Miller "her pain is 95 -2-
Authoring Judge: John A. Turnbull, Sp. J.
Originating Judge:Hon. Irvin Kilcrease, Jr., Judge
Davidson County Workers Compensation Panel 02/12/01
John Edward Whitaker v. Lear Corporation

E2000-00060-WC-R3-CV
The appellant-employer appealed the trial court's ruling awarding appellee-employee 6 percent permanent partial disability to each arm. Appellant argues the award of disability is excessive and should be reduced. Judgment of the trial court is affirmed.
Authoring Judge: Thayer, Sp. J.
Originating Judge:Kindall T. Lawson, Circuit Judge
Knox County Workers Compensation Panel 02/12/01
Felipe Aguirre v. James and Patsy Chambers, d/b/a Big C

E2000-00980-WC-R3-CV
Plaintiff Felipe Aguirre suffered the loss and amputation of his arm as a result of a traffic accident allegedly occurring in the course of his employment with defendant. The circuit court found the accident to be unconnected to his employment and dismissed his suit. We affirm.
Authoring Judge: William H. Inman, Sr. J.
Originating Judge:O. Duane Sloan, Circuit Judge
Knox County Workers Compensation Panel 02/12/01
State of Tennessee v. Kevin Wayne Brim

M1999-01925-CCA-R3-CD

The defendant appeals from the revocation of his probation, contending that the trial court erred in ordering consecutive sentences. We affirm the judgment of the trial court.

Authoring Judge: Judge Joseph M. Tipton
Originating Judge:Judge Timothy L. Easter
Williamson County Court of Criminal Appeals 02/09/01
Barbara Jo Heck, et al v. City of Sevierville

E2000-00464-COA-R3-CV

In this suit the Plaintiffs seek damages for injuries received by Barbara Jo Heck when she slipped on a patch of ice and fell on property owned by the City of Sevierville. The Trial Court found that the City had no actual or constructive notice of the presence of the ice causing Mrs. Heck to fall and, accordingly, dismissed the complaint. We affirm under Rule 10(a) of the Court of Appeals.

 

Authoring Judge: Presiding Judge Houston M. Goddard
Originating Judge:Judge Rex Henry Ogle
Sevier County Court of Appeals 02/08/01
State of Tennessee v. Tiffany R. Weatherspoon

W2000-00971-CCA-R3-CD

The defendant, Tiffany R. Weatherspoon, pled guilty in the Hardin County Circuit Court to the Class B felony of unlawful possession of over .5 grams of a Schedule II controlled substance, to wit: cocaine, with the intent to manufacture, deliver, or sell. She received the agreed-upon sentence of eight years, as a Range I offender, and a $2,000 fine. The trial court denied alternative sentencing and ordered that the defendant be incarcerated. She appealed, arguing that the court erred in denying alternative sentencing. Based upon our review, we affirm the order of the trial court.

Authoring Judge: Judge Alan E. Glenn
Originating Judge:Judge C. Creed McGinley
Hardin County Court of Criminal Appeals 02/07/01
Tommie A. Drumwright v. Anderson Hickey Company and

W1999-00817-WC-R3-CV
The plaintiff, Tommie A. Drumwright, appeals the judgment of the trial court which found the plaintiff failed to carry her burden of proving a work-related injury and dismissed her claim. For the reasons stated in this opinion, We affirm the judgment of the trial court.
Authoring Judge: W. Michael Maloan, Sp. J
Originating Judge:Martha B. Brasfield, Chancellor
Anderson County Workers Compensation Panel 02/07/01
Jerry Trusty, et al., v. Capri Robinson, et al.

M2000-01590-COA-R3-CV

This appeal arises from a landlord-tenant dispute over damage to residential property. After the landlords obtained a $3,600 judgment in the Smith County General Sessions Court, the tenants appealed to the Circuit Court for Smith County. A jury awarded the landlords $4,500. On this appeal, the appellants assert that the trial court erred by (1) permitting the landlords' lawyer to exercise a peremptory challenge in a racially discriminatory manner, (2) permitting the landlords' lawyer to make prejudicial statements to the jury during opening argument, (3) providing a supplemental instruction in response to the jury's question, and (4) failing to enter a detailed order denying their motion for new trial. We find nothing deficient in the trial court's order denying the motion for new trial. In addition, the absence of either a transcript or a statement of the evidence or proceedings prevents us from considering the substance of the tenants' other issues. Accordingly, we affirm the judgment and find that the appeal is frivolous.

Authoring Judge: Judge William C. Koch, Jr.
Originating Judge:Judge Clara W. Byrd
Smith County Court of Appeals 02/06/01
James Robert Whitworth v. State of Tennessee

W2000-02000-CCA-R3-PC

The petitioner, who is currently in the custody of the Mississippi Department of Corrections, entered pleas of guilty in 1974 in the Shelby County Criminal Court to the offenses of assault and battery with intent to rape and attempt to commit a felony, to wit: crime against nature. In 2000, he filed a petition to vacate and set aside these sentences, claiming that his pleas of guilty were not voluntary, that his counsel had been ineffective, and that he was innocent of the charges. The post-conviction court dismissed the petition as untimely, the statute of limitations having expired before it was filed; and the petitioner timely appealed. Based upon our review, we affirm the order of the post-conviction court dismissing the petition as untimely.

Authoring Judge: Judge Alan E. Glenn
Originating Judge:Judge James C. Beasley, Jr.
Shelby County Court of Criminal Appeals 02/06/01
John Hapney, et al., v. James Warren, et al.

E2000-00783-COA-R3-CV

In this case the plaintiffs are seeking damages for personal injuries received in a vehicle accident. The plaintiffs were exiting the interstate and were bumped from the rear by the vehicle driven by Mrs. Warren. While other facts relating to the accident were disputed, it was undisputed that there was no physical injury to either of the vehicles or their contents. The police were not called to the scene and no report was made. The plaintiffs filed suit to collect damages for injuries to Mrs. Hapney's neck which she claimed were received in the accident. The jury found no negligence on the part of the defendants. One of the doctors, who saw Mrs. Hapney, testified for the defendants in the case as to causation of Mrs. Hapney's injuries. In their motion for a new trial and on appeal, the plaintiffs contend that the trial court erred in admitting the testimony of the doctor. The trial court denied the motion for a new trial. The plaintiffs appeal challenging the jury verdict and the admission of the doctor's testimony. We affirm the trial court.

Authoring Judge: Judge Houston M. Goddard
Originating Judge:Judge O. Duane Slone
Sevier County Court of Appeals 02/06/01
State of Tennessee v. John E. Parnell

W1999-00562-CCA-R3-CD

The defendant was convicted by a Shelby County jury of criminally negligent homicide and aggravated child abuse. The trial court sentenced him to concurrent sentences of two years for the homicide charge and twenty years for the aggravated child abuse charge. In this appeal as a matter of right, the defendant alleges (1) he was incompetent to stand trial, and (2) the evidence was insufficient to sustain the guilty verdict for aggravated child abuse. The defendant was indicted in count one for aggravated child abuse by treating the child in a manner so as to inflict injury; the defendant was indicted in count two for aggravated child abuse by neglecting the child so as to adversely affect his health and welfare; the jury was instructed to consider count two only if the defendant was found not guilty of count one; the jury found guilt only as to count one; the jury never returned a verdict on count two; and the evidence is insufficient to sustain the verdict under count one. Although the evidence overwhelmingly establishes guilt of aggravated child abuse by neglect as alleged in count two, the jury's failure to return a verdict on this count requires a remand for retrial on count two. We affirm the conviction for criminally negligent homicide.

Authoring Judge: Judge Joe G. Riley
Originating Judge:Judge Joseph B. Brown
Shelby County Court of Criminal Appeals 02/06/01
Ronald L. Davis v. Donal Campbell

M1997-00234-COA-R3-CV

This appeal involves a dispute between a prisoner serving a 99-year sentence and the Department of Correction regarding the calculation of the prisoner's release eligibility date. After the Department declined to issue a declaratory order changing his release eligibility date, the prisoner filed an action in the Chancery Court for Davidson County asserting that the Department had incorrectly classified him as a Class X felon because he had not been convicted of a Class X crime, and he had not received credit for jail time served prior to his prison sentence. The Commissioner of Correction moved to dismiss the complaint, and the trial court, after converting the Commissioner's motion to a motion for summary judgment, dismissed the prisoner's complaint. On this appeal, the prisoner essentially reargues the same issues raised in his complaint. We have determined that the trial court correctly concluded that the material facts are not in dispute and that the Commissioner is entitled to a judgment as a matter of law. Accordingly, we affirm the summary judgment

 

Authoring Judge: Judge William C. Koch, Jr.
Originating Judge:Chancellor Irvin H. Kilcrease, Jr.
Davidson County Court of Appeals 02/05/01
Bradley J. Brown v. Mickey Joe Rogers

M2000-01277-COA-R3-CV

The biological father appeals the termination of his parental rights which allowed the adoption of his two children by the stepfather after the mother's death. Although the evidence that the father abandoned his children was clear and convincing, the proof, when supplemented with post-judgment facts, was insufficient to determine whether termination of parental rights was in the best interests of the children. We remand for a hearing on the children's best interests.

Authoring Judge: Judge Patricia J. Cottrell
Originating Judge:Judge Don R. Ash
Rutherford County Court of Appeals 02/05/01
Kenneth Crotts v. Benchmark Mechanical Contractors,

W1999-00711-WC-R3-CV
The plaintiff, Kenneth Crotts, appeals the judgment of the Circuit Court of Hardin County which found the plaintiff failed to carry his burden of proving an injury by accident and dismissed his claim. For the reasons stated in this opinion, We affirm the judgment of the trial court.
Authoring Judge: W. Michael Maloan, Sp. J,
Originating Judge:C. Creed Mcginley, Judge
Hardin County Workers Compensation Panel 02/05/01
State of Tennessee, ex Rel. Elisa Crippen, v. Lawrence Johnson

E1999-01855-COA-R3-CV

This case concerns the modification of a child support award. In addition to the child for whom support was set in the instant case, the obligor father had three other children. At one point in the past, he was required by court order to support these three other children; but, by the time of the hearing below, his obligation had been terminated except for an arrearage on which he was continuing to pay. In determining the proper award in the instant case, the trial court considered the father's other three children and deviated from the Child Support Guidelines due to the father's "hardship." The State, as assignee of the mother's right to child support, appeals. We modify the trial court's award.

 

Authoring Judge: Judge Charles D. Susano, Jr.
Originating Judge:Judge Carey E. Garrett
Knox County Court of Appeals 02/02/01
Evelyn Logue, v. Shelbyville Housing Authority, et al.

M1999-02555-COA-R3-CV

The controlling issues in this appeal are (1) whether under the terms of an employee policy manual the dismissed employee was something other than an employee at will, and (2) whether the action of the Board of the Shelbyville Housing Authority in upholding the dismissal was arbitrary or illegal or lacked material evidence to support it. The Chancery Court of Bedford County reviewed the record and found that the Board’s action was supported by substantial and material evidence and was not arbitrary nor illegal. We affirm.

Authoring Judge: Judge Ben H. Cantrell
Originating Judge:Chancellor Tyrus H. Cobb
Bedford County Court of Appeals 02/01/01
State of Tennessee v. Billy J. Coffelt

M1998-00337-CCA-R3-CD

The petitioner appeals the trial court's denial of his motion for delayed appeal regarding his petition for post-conviction relief. We remand the case to the trial court.

Authoring Judge: Judge Joseph M. Tipton
Originating Judge:Judge Cheryl A. Blackburn
Davidson County Court of Criminal Appeals 02/01/01
State of Tennessee v. Robert Ervin

W2000-01035-CCA-R3-CD

Robert Ervin, also known as Muhammad Jabbar, was convicted of attempted second degree murder and sentenced to twenty-five years in the Tennessee Department of Correction. On appeal, Ervin raises one issue for our review: Whether the evidence produced at trial was sufficient to support the verdict. After review, we find the evidence sufficient and affirm the judgment.

Authoring Judge: Judge David G. Hayes
Originating Judge:Judge Jon Kerry Blackwood
Lauderdale County Court of Criminal Appeals 01/31/01
Daniel Sherwood v. Microsoft

M2000-01850-COA-R9-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Originating Judge:Walter C. Kurtz
Davidson County Court of Appeals 01/31/01
Orion Pacific, Inc. vs. Exchange Plastics Company

M2000-02345-COA-R3-CV
The defendant Ohio company purchased truckloads of plastic from the Tennessee division of a Texas company. When the Ohio company refused to pay for all the plastic, the Texas company filed suit for the balance in a Tennessee court. The defendant argued that it did not have sufficient contact with Tennessee to subject it to personal jurisdiction in this state's courts. The trial court disagreed, and following a hearing, rendered a judgment for the plaintiff in the amount of $11,288. We affirm.
Authoring Judge: Judge Ben H. Cantrell
Originating Judge:Robert E. Corlew, III
Rutherford County Court of Appeals 01/31/01
Kristen Bridges vs. Carla King

W2000-01919-COA-R3-CV
Paternity of minor child was established by a juvenile court consent order entered November 26, 1991, and custody of the child was awarded to Mother. In January, 2000, Father filed a petition to change custody on the basis of change of circumstances and the best interest of the child which was granted by the juvenile court referee. The referee's findings and recommendations were confirmed and made the decree of the court on May 25, 2000. Subsequently, on Mother's petition, an evidentiary hearing was held before the juvenile judge, and on July 6, 2000, after the evidentiary hearing, an order was entered reconfirming the referee's ruling of May 25, 2000. Mother has appealed. We reverse.
Authoring Judge: Judge W. Frank Crawford
Originating Judge:George E. Blancett
Shelby County Court of Appeals 01/31/01
Michael Ray Brenneman vs. Margaret Ann Redd Brenneman

M2000-00890-COA-R3-CV
This appeal involves the dissolution of a 31-year marriage by the Circuit Court for Wilson County. Following a bench trial, the trial court declared the parties divorced and divided their marital property but declined to award the wife spousal support. On this appeal, the wife asserts that the trial court erred by declining to grant her spousal support. We have determined that the trial court placed too much emphasis on the value of the wife's share of the marital estate when it declined to grant her spousal support. Accordingly, we have determined that the judgment should be amended to award the wife spousal support in the amount of $200 per month until she reaches sixty-five years of age. We also remand the case to the trial court to calculate a reasonable award for the wife's legal expenses.
Authoring Judge: Judge William C. Koch, Jr.
Originating Judge:Clara W. Byrd
Wilson County Court of Appeals 01/31/01
William Paul Bogus v. State of Tennessee

W2000-00348-CCA-R3-PC

The petitioner appeals from the Dyer County Circuit Court's dismissal of his petition for post-conviction relief. In 1994, the petitioner was tried and convicted of first degree murder in the perpetration of a felony and aggravated burglary. His convictions were affirmed, after which he timely filed a petition seeking post-conviction relief, claiming ineffective assistance of trial and appellate counsel, juror misconduct because an alternate juror had lied during voir dire about not knowing the petitioner, insufficient evidence to support the felony-murder conviction, and suppression of exculpatory evidence. After an evidentiary hearing, the post-conviction court denied relief. We affirm the post-conviction court's denial of the petitioner's request for post-conviction relief.

Authoring Judge: Judge J. Curwood Witt, Jr.
Originating Judge:Judge J. Steven Stafford
Dyer County Court of Criminal Appeals 01/31/01
Daniel Sherwood v. Microsoft

M2000-01850-COA-R9-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Originating Judge:Walter C. Kurtz
Davidson County Court of Appeals 01/31/01
State vs. Ewing

W2000-01190-COA-R3-PC
This is an appeal by a juvenile from an order of the circuit court granting the State's motion to dismiss her petition for post-commitment relief. The grounds stated in the petition are that she was given an illegal sentence when the juvenile court, having found her delinquent in that she committed "theft under $500.00, violation of aftercare," imposed a determinate sentence of 2 years. We reverse and remand.
Authoring Judge: Judge David R. Farmer
Originating Judge:Roy Morgan
Madison County Court of Appeals 01/31/01