Randall Fleming vs. Jacqueline Yi
02A01-9706-CV-00129
Trial Court Judge: Whit A. Lafon

Don/Phil Gordon vs. Georgetown Univ
02A01-9709-CH-00218
Trial Court Judge: William Michael Maloan

Jonus Cole vs. State
01C01-9509-CC-00294
Trial Court Judge: Walter C. Kurtz

State vs. Jarrod Adreon
01C01-9609-CC-00391

State vs. Jamil Butler
01C01-9612-CR-00529

State vs. Rickey Hailey
02C01-9705-CR-00198
Trial Court Judge: Carolyn Wade Blackett

In re: Brittany Swanson, a minor
02A01-9709-CV-00233
Trial Court Judge: Joseph H. Walker, III

State vs. Elwin South
02C01-9710-CR-00386

Mary Fuller vs. Eligo Fuller
02A01-9708-CH-00175
Trial Court Judge: Joe C. Morris

State vs. Quincy Henderson
02C01-9706-CR-00227
Trial Court Judge: Carolyn Wade Blackett

State vs. Glenn Ray
02C01-9709-CR-00369

Tanaka vs. Meares
03A01-9710-CV-00463
Trial Court Judge: Dick Jerman, Jr.

Seffernick vs. St. Thomas Hospital, et. al.
01S01-9706-CV-00122
Trial Court Judge: Thomas W. Brothers

James Biggs v. Jones Stone Company, Inc.
01S01-9711-CH-00239
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. Irvin H. Kilcrease,
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. The employee was awarded benefits for a 3 percent permanent partial disability to his whole body. He appeals, claiming that his anatomical impairment is ten percent, which should be extrapolated to total and permanent disability. The thrust of his argument is directed to the weight to be given to the expert testimony. The employer admitted that the employee suffered a compensable back injury on September 8, 1995. The issues at trial were limited to the extent of physical impairment and residual vocational disability. The Chancellor found the plaintiff had a five percent impairment. He applied a multiplier of six, T.C.A. _ 5-6-241, resulting in a finding of 3 percent permanent partial disability to his whole body. The treating physician was Dr. Stanley G. Hopp, an orthopedic specialist, who testified that the plaintiff's radicular pain was emanating from the right L-5 nerve root. He performed surgery on February 23, 1996 and removed the offending spurs. Recovery was hampered because of diabetes, but with the passage of time the plaintiff was able to work, with lifting restrictions. Dr. David Gaw, orthopedic specialist, examined the plaintiff for purposes of evaluation. He testified that in his view the plaintiff had a ten percent impairment based on DRE Category III of the Guidelines, which he interpreted as requiring this rating because "anybody that has a radiculopathy that's proven by tests and has surgery, that throws them into Category III." He conceded that he found no symptoms of nerve damage, that the plaintiff was in no distress or pain, that he was taking no medications, had no back spasm, no atrophy or weakness in his legs and had good movement. 2

J.C. Penney, Inc. v. Debra Sue Crawford
01S01-9707-CH-00167
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Chancellor
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. The employee filed this complaint for a determination of the benefits available to the defendant on account of asserted compensable injuries to her arms/hands, i.e., carpal tunnel syndrome. The Chancellor awarded benefits for a three percent permanent partial disability to each arm. The employee appeals, and presents two issues for review, which we restate as whether the award was inadequate, and whether the employee should have been allowed to state an opinion concerning her ability to perform certain jobs. Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. TENN. CODE ANN. _ 5-6-225(e)(2). Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). Ms. Crawford is 37 years old. She is a high school graduate, five feet three inches tall and weighs 295 pounds, according to the IME, Dr. David Gaw. She began working as a customer service representative in the telemarketing division of J.C. Penney Company in 199, where she remains employed. In January 1995 she reported symptoms of hand pain to her employer who referred her to Dr. James Lanter, orthopedic specialist. Dr. Lanter first saw her on February 22, 1995 and diagnosed her condition as tendinitis with possible carpal tunnel syndrome. He recommended a reduction in her working hours to 32 per week, and continued to see her through February 21, 1996. During this time Dr. Lanter's treatment was extensive; he obtained two EMG's and nerve conduction studies which indicated mild bilateral carpal tunnel syndrome, not progressive. He continued treating her for more than a 2

Andy Phillips v. Anthony Hall Construction, et al.
01S01-9710-CC-00213
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. J. O. Bond,
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. This case involves a weighty issue of whether the judgment is supported by the preponderance of all the evidence. RULE 13(d), T. R. A. P. Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. TENN. CODE ANN. _ 5-6- 225(e)(2). Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). Adjunctive is the established rule that we are as well positioned as the trial judge to gauge the worth of the depositional testimony, and we have done so, in accordance with our prerogative and responsibility. Cooper v. INA, 884 S.W.2d 446, 451 (Tenn. 1994); Landers v. Fireman's Fund Ins. Co., 775 S.W.2d 355, 356 (Tenn. 1989). The plaintiff is 39 years old. He completed eleven years of schooling and apparently has no marketable job skills. On December 21, 1995, while working on a barn, he chose to descend from the roof by sliding down a brace rather than using a ladder as instructed. He fell against another brace and injured his left arm and back. He continued to work but developed problems the following day and was given his choice of physicians. He selected Dr. Wayne Wells, who passed him on to Dr. Michael Moore, who released him to return to work on January 15, 1996 with temporary restrictions against overhead lifting and lifting more than 25 pounds with his left arm. 2

Thurman D. Vanwinkle v. Bridgestone U.S.A., Inc.
01S01-9709-CH-00190
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. James K. Clayton, Jr.
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. The plaintiff alleges that he suffered a heart attack attributable to the demands of his job and therefore compensable within the purview of the Workers' Compensation law. The words "heart attack," as alleged, are generically used and are generally referable to any sudden adverse cardiac condition; in the case at Bar, the plaintiff suffered a myocardial infarction.1 The trial court found that the "petition for workers' compensation benefits should be sustained," and that the plaintiff had a 6 percent permanent impairment,2 presumably attributable to his heart condition. The employer appeals, questioning the finding that the plaintiff's heart problem is work-related. Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. TENN. CODE ANN. _ 5-6-225(e)(2), Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). Background 1An infarct is a region of dead or dying tissue which is the result of a sudden obstruction to the blood circulation supplying the involved part, usually by a clot. A myocardial infarct is a region of dead or dying tissue in the muscle of the heart which is the result of an obstruction to the blood supply usually by a clot lodged in a coronary artery. 2The judgment refers to a letter containing a "Finding of Facts" but this letter is not in the record. We thus have no findings to review under the appropriate standard, RULE 13(d), T.R.A.P., which requires a presumption of correctness. We therefore have conducted a de novo review with no presumption. 2

Marilyn L. Knight v. Liberty Mutual Insurance Group
01S01-9710-CH-00214
Authoring Judge: William S. Russell, Retired Judge
Trial Court Judge: Hon.

Sherry Maxwell v. Nissan Motor Mfg. Corp., et al.
01S01-9711-CH-00241
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. Don R. Ash,
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. This is a bilateral carpal tunnel syndrome case involving a 34-year-old woman whose impairment to each arm was judicially found to be 33 percent. Her condition gradually evolved, and she was initially treated by Dr. Thomas Tompkins, an orthopedic specialist, on August 21, 1995. Six weeks later he performed the usual surgical releases, which were successful. Dr. Tompkins last saw the plaintiff on January 12, 1996 when he released her to resume employment but without repetitive forceful gripping. Basing his assessment on the Guidelines, Dr. Tompkins testified that she had five percent impairment to each arm. In February 1996, Dr. David Gaw, an orthopedist, was employed by the plaintiff's counsel to perform an IME. He testified that the plaintiff had a ten percent impairment to each arm. Because the plaintiff returned to work in January 1996 and from that day forward "has not missed work," "has not complained to anyone about your job," "has not complained to the doctors or anyone at Nissan about your hands," "has gotten good work reviews since then," the employer complains that the assessment of a 33 percent impairment to each arm is excessive, arguing that if this finding is correct the plaintiff is ipso facto unable to perform her job, i.e., that the anomaly is apparent. Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. TENN. CODE ANN. _ 5-6-225(e)(2). Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). The inferred thrust of the appellant's argument respecting our

Judy Plunk, who sues as Administratrix of the Estate of Jerry L. Plunk v. Illinois Railroad a Corporation - Concurring
02A01-9707-CV-00167
Authoring Judge: Judge Hewitt Tomlin
Trial Court Judge: Judge John R. Mccarroll, Jr.

Judy Plunk (“plaintiff”) as administratrix of her husband’s estate, filed  suit in the Circuit Court of Shelby County pursuant to the Federal Employer’s Liability Act, (FELA) against the Illinois Central Railroad (“defendant” or “railroad”) seeking damages stemming from the death of her husband, Jerry Plunk (“decedent”), who was the engineer of a train owned and operated by defendant that was involved in a head-on collision with another train. The case was tried by a jury. At the  conclusion of plaintiff’s proof and again at the conclusion of all the proof, defendant made a motion for a directed verdict which was overruled each time by the trial court. The case was submitted to the  jury, who found plaintiff’s decedent 70% negligent and defendant 30% negligent in causing the collision, and awarded plaintiff $285,000.00 as damages. On appeal defendant has raised five issues for our consideration: whether the trial court erred in (1) failing to grant  defendant’s motion for directed verdict on the ground that decedent was the sole cause of the accident; (2) admitting into evidence testimony of plaintiff’s expert, Dennis Runcie; (3) allowing other railroad employees to testify as “experts” regarding “good railroad practice”; (4) admitting into evidence testimony of plaintiff’s economist expert, Fred Johnson;  and (5) failing to order plaintiff’s counsel to dismiss with prejudice  allegations of defendant’s vicarious liability in two collateral cases pending in Mississippi and to cease representation of certain plaintiffs in the Mississippi litigation. For the reasons hereinafter stated, we reverse in part and remand this case to the trial court for a new trial in keeping with the provisions of this opinion.

Betty J. Collins, v. David Collins
03A01-9708-CH-00326
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Thomas R. Frierson, II

Plaintiffs Betty J. Collins, Panther Park Missionary Baptist Church, and six Church trustees appeal the trial court’s final judgment which established the boundary line between the parties’ respective properties. We affirm the trial court’s judgment based on our conclusion that the evidence does not preponderate against the trial court’s finding that an existing fence row represents the boundary line between the properties.

State of Tennessee v. Willie D. Graham - Concurring
03C01-9707-CC-00314
Authoring Judge: Judge Gary R. Wade
Trial Court Judge: Judge James B. Scott, Jr.

Indicted for first degree murder, the defendant, Willie D. Graham, was convicted of voluntary manslaughter in the death of his brother-in-law, Ray Anthony Shervington. The trial court imposed a Range I sentence of six years.

State of Tennessee, v. Gary Lewis Thompson
03C01-9703-CR-00105
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge R. Steven Bebb

The appellant, Gary Lewis Thompson, was indicted by a Monroe County Grand Jury for the offense of vehicular homicide, driving under the influence, third offense, and driving on a revoked license. On July 22, 1996, the appellant pled guilty to DUI, third offense, with the sentence to be determined by the trial court. Prior to the guilty plea hearing, the State moved to nolle pros the vehicular homicide charge, which was granted. Additionally, the trial court, upon appellant’s motion, dismissed the charge of driving on a revoked license. Immediately following entry of the guilty plea, the State, for the first time, requested seizure and forfeiture of the appellant’s John Deere tractor, which he was operating at the time the DUI offense occurred. Following a sentencing hearing on September 6, 1996, the trial court imposed a sentence of eleven months twenty-nine days in the county jail and assessed a fine of $7,500 for the DUI, third offense conviction. The appellant’s release percentage was fixed at 75%. The trial court also ordered that the farm tractor be “confiscated” from the appellant’s possession and forfeited to the State. On November 8, 1996, the written order to seize and forfeit the tractor was entered. The appellant appeals from the trial court’s judgment pursuant to Tenn. R. Crim. P. 37(b)(2)(ii), raising the following two issues: I. Whether the period of confinement in the jail is excessive; and II. Whether § 55-10-403(k)(1) properly authorizes forfeiture of his tractor.

Joe Erwin and Susan Erwin, as surviving parents of and next of kin of Bethany Suzanne Erwin, et. ux. v. James M. Rose, Wade Matheny, in his capacity as Sheriff of Maury County, Tennessee, and Tracy Joe Lovell
01A01-9706-CV-00248
Authoring Judge: Presiding Judge Henry F. Todd

 The appellants have filed a petition to rehear based on the Western Section’s opinion in Sims v. Stewart, No. 02A01-9706-CV-00123 (Jackson, Jan. 21, 1998). In Sims the court relied on an earlier case of Dwight v. Tennessee Farmers Mut. Ins. Co., 701 S.W.2d 621 (Tenn. App. 1985), and decided that the policy in question “provides that reduction for worker’s compensation benefits applies to damages and in no way affects the coverage available.” We think that Dwight stated the opposite; it stated that coverage was reduced by any worker’s compensation benefits paid or payable. We respectfully overrule the petition to rehear.

Robert C. Daniels v. Charles Traughber, Chairman, Tennessee Board of Paroles, et al. - Concurring
01A01-9707-CH-00297
Authoring Judge: Judge Ben H. Cantrell

I concur with the decision to affirm the trial court’s order. In my view, it is simply a case of statutory application. In the “Open Parole Hearings Act” of 1993 the legislature provided that the Parole Board shall receive and consider victim impact statements, Tenn. Code Ann. § 40-28-504(a); that notice be given to the victim or the victim’s representative and to the trial judge and district attorney involved in the original criminal prosecution, Tenn. Code Ann. § 40-28-505(b)(1), (2) and (4); and that on a failure to provide the required notices, the Board may schedule a new hearing if the Board receives a written victim impact statement within fifteen days of the time the parole decision is finalized, Tenn. Code Ann. § 40-28-505(d)(2).