James G. Cooper v. Asarco, Inc.
03S01-9709-CV-00114
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Rex Henry Ogle,
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 contends the award of permanent partial disability benefits based on seventy-five percent to the leg is excessive. As discussed below, the panel has concluded the award should be affirmed. The employee or claimant, Cooper, is sixty-one years old and has a fourth grade education, but cannot read. He has worked as garbage collector, laborer and welder. He suffered a compensable knee injury on January 19, 1995, but continued to work with pain and swelling until April of the same year when he consulted an orthopedic surgeon. When the pain and swelling persisted, the surgeon performed arthroscopic surgery and diagnosed mild spurring and joint effusion superimposed on degenerative arthritis. The claimant was returned to work with permanent restrictions. The employer has made accommodations and the claimant has returned to work with restrictions and limitations. The trial judge found the claimant entitled to permanent partial disability benefits based on seventy-five percent to the injured leg. 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). Conclusions of law are subject to de novo review on appeal without any presumption of correctness. Presley v. Bennett, 86 S.W.2d 857 (Tenn. 1993). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review. Kellerman v. Food Lion, Inc., 929 S.W.2d 333 (Tenn. 1996). The appellate tribunal, however, is as well situated to gauge the weight, worth and significance of deposition testimony as the trial judge. Orman v. Williams Sonoma, Inc., 83 S.W.2d 672 (Tenn. 1991). Once the causation and permanency of an injury have been established by expert testimony, the trial judge may consider many pertinent factors, including age, job skills, education, training, duration of disability, and

State vs. Shirley Davis
W2000-00084-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: Carolyn Wade Blackett
On December 3, 1998, a Shelby County Grand Jury indicted Shirley Davis, the Defendant and Appellant, for aggravated robbery. Following a jury trial, the Defendant was convicted as charged. After a subsequent sentencing hearing, the trial court sentenced the Defendant to serve nine years incarceration. On appeal, the Defendant claims that the trial court erroneously enhanced her sentence. Although we find that the trial court erroneously applied a statutory enhancing factor, our de novo review reveals the existence of an applicable enhancing factor that was not applied by the trial court. This enhancement factor amply justifies the sentence imposed. Accordingly, we affirm the trial court's judgment.

The CIT Group/Sales Financing vs. Leslie Williams
02A01-9706-CH-00120
Trial Court Judge: Joe C. Morris

Ashe vs. Radiation Oncology Associates
01A01-9710-CV-00563
Trial Court Judge: Henry F. Todd

Donald Zseltvay vs. Metropolitan Government
01A01-9710-CV-00587
Trial Court Judge: Hamilton V. Gayden, Jr.

Ashe vs. Radiation Oncology Associates
01A01-9710-CV-00563
Trial Court Judge: Hamilton V. Gayden, Jr.

Angela Hogan vs. Rex Reese and Sonya M. Reese
01A01-9801-CV-00023
Trial Court Judge: Thomas Goodall

Hartsville Hospital, Inc. vs. The National Bank & Trust Co.
01A01-9801-CH-00022
Trial Court Judge: C. K. Smith

Edward Traughber, et al. vs. Kelly A. Kress, et al.
01A01-9709-CV-00525
Trial Court Judge: James E. Walton

Donald Davis vs. Sumner County Sheriff, J. D. Vandercook, et al.
01A01-9712-CV-00696
Trial Court Judge: Thomas Goodall

Concrete Spaces, Inc., et al. vs. Henry Sender, et al.
01A01-9607-CH-00288
Trial Court Judge: Whitney Stegall

State vs. Jeffrey Pewitt
01C01-9706-CR-00202
Trial Court Judge: Thomas H. Shriver

State vs. Craig Hazlett
01C01-9708-CC-00321
Trial Court Judge: W. Charles Lee

State vs. Latoya Anderson
02C01-9707-CR-00251

State vs. Quentin Hall
02C01-9802-CR-00040

Conviction Was Affirmed By This Court. State v. Clonte J. Thomas, C.C.A. No.
02C01-9804-CR-00113

State vs. Burl Jarrett
02C01-9710-CC-00418

State vs. Tammy Elliott
02C01-9803-CC-00070

State vs. Mario Bowser
02C01-9803-CR-00093
Trial Court Judge: Carolyn Wade Blackett

03A01-9708-CV-0365
03A01-9708-CV-0365
Trial Court Judge: Wheeler A. Rosenbalm

Allstate vs. Daniel
03A01-9710-CV-00466
Trial Court Judge: Harold Wimberly

Renaissance vs. Billbury
03A01-9710-CH-00462

Pigeon vs. Maples
03A01-9802-CV-00048

State vs. Brown
03C01-9707-CR-00304
Trial Court Judge: James E. Beckner

Darrell Swearengin v. Pacific Employers & Dina Tobin, Dir.
01S01-9704-CH-00090
Authoring Judge: John K. Byers, Senior Judge
Trial Court Judge: Hon. Henry Denmark Bell,
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. There are no issues of fact in dispute in this case. All sides agree that the plaintiff is totally and permanently disabled and that he qualifies for payment until age 65. Because the injury in this case was subsequent to previous injuries, the Second Injury Fund incurred liability under Tenn. Code Ann. _ 5-6-28(a). The employer and the Second Injury Fund agree that their liability is properly apportioned at 25 percent to the employer and 75 percent to the Second Injury Fund. The trial judge ordered the employer and the Second Injury Fund to make payment concurrently and a mathematical formula was reached which would fulfill each of the payor's liability for their portion of the award when the plaintiff reached age 65. The employer asserts its liability should be limited to 4 weeks and insists the trial court properly ordered concurrent payment by it and the Second Injury Fund. The employer concedes these issues would be resolved by the decision of the Supreme Court in Bomely v. Mid-America Corp., ___ S.W.2d ___ (Tenn. 1998).1 The Supreme Court has decided Bomely and the issues raised herein by the employer have been decided adversely to it. The Supreme Court held the percentage of liability of an employer in cases such as this shall not be limited to the relationship of its percentage of liability to 4 weeks. Rather, the Court held the liability would be apportioned over the total amount of the award in accordance with the percentage of liability affixed to the employer and the Second Injury Fund. Further, the Court held that the employer shall pay its portion of the award first and the Second Injury Fund shall commence payment when the employer has satisfied its liability. The trial court's judgment requiring concurrent payment by the employer and the Second Injury Fund and limiting the employer's liability to 25 percent of 4 1 This appeal was filed April 18, 1997 and the opinion in Bomely was filed by the Supreme Court on May 26, 1998. We have abided the decision in that case to decide this case. 2