Trial Court Judge: Hon. Donald P. Harris, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employee contends the trial court erred in granting the employers motion for summary judgment on grounds that the claim was barred by the statute of limitations. We conclude that the running of the one year statute of limitations was tolled from the time the employee requested assistance of the Department of Labor until his claim for medical benefits was rejected by the claims specialist. Tenn. Code Ann. _5-6-225(e)(3) Appeal as of Right; Judgment of the Chancery Court Reversed and Remanded TURNBULL , Sp.J., delivered the opinion of court, in which DROWOTA , J., and LOSER, Sp.J., joined. Christopher L. Dunn, Columbia, Tennessee, for the appellant, John Welsh. Delicia R. Bryant, Brewer, Krause & Brooks, Nashville, Tennessee, for the appellees, Universal Fasteners, Inc., and The Yasuda Fire and Marine Insurance Company. MEMORANDUM OPINION Facts The thirty year old employee, Welsh, is a high school graduate with a work history of manufacturing line employment. He began working for his employer, Universal Fasteners, Inc., in March of 1989, and continues to work there. In the spring of 1996, the employee began experiencing pain in his right shoulder. From September of 1991 until September of 1996, he worked on Universal's plating line. This task required repetitive scooping liquid material [slugs] in one or two gallon buckets weighing between ten and sixty pounds. The task was repeated six times during each seven and one-half minute plating cycle throughout the work day. The pain in employee's shoulder progressed during the summer of 1996, ultimately causing him to report his injury to his employer on September 26, 1996. Welsh then went to Dr. Michael Pagnani who diagnosed bicipital tendinitis with a spur projecting from the under surface of the right acromion and recommended limitation of upper extremity work, and discussed the possibility of rotator cuff surgery if pain persisted. Dr. Pagnani was equivocal as to whether the injury resulted from employment. After initially paying medical expenses, the Yasuda Fire and Marine Insurance Company denied Welch's claim for medical benefits and filed a notice of controversy on November 4, 1996. Yasuda's last voluntary medical payment occurred on November 27, 1996. On November 18, 1996, the employee contacted the Tennessee Department of Labor and requested review of Yasuda's denial of benefits. The record does not contain the entire Department of Labor file, but does indicate the first claim specialist assigned to the case made an investigation and wrote for a medical report on April 23, 1997. Due to change ofpersonnel, a new claim specialist was assigned in the summer of 1997, and on August 8, 1997, she wrote Yasuda and Welsh indicating she found "the medical evidence supports that Mr. Welsh suffers from a compensable work related injury," and stated her position "medical coverage for this claim should be reinstated and recommended courses of treatment ... should be followed." However, on September 19, 1997, the specialist reversed her finding and stated in a letter to Mr. Welsh: "I cannot justify ordering medical and/or lost time benefits in this case. Mine is not the final word however, and you may bring your dispute before a court of proper jurisdiction. You do not have an unlimited time to do so. Tenn. Code Ann., Section 5-6-23 sets a one year statute of limitations to bring a suit for compensation. You may wish to seek legal counsel to properly preserveyour legal rights." The employee retained counsel in January of 1998, and filed suit February 3, 1998. The employee has not missed any work due to his injury, but did make a contingent claim for temporary total and permanent disability benefits in his filed complaint. From the above summarized evidence, the chancellor found no dispute as to any genuine issue of material fact and concluded that Welsh failed to file his complaint within one year from the date of last voluntary payment of medical expenses on November 27, 1996. At the hearing on motion for summary judgment, trial counsel failed to cite or advise the chancellor of the provision [2]
Hickman
Workers Compensation Panel
Merlin Gene Cletcher v. Wal-Mart Stores, Inc.
M1998-00011-WC-R3-CV
Authoring Judge: Hamilton V. Gayden, Jr., Special Judge
Trial Court Judge: Hon. C.K. Smith, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. Section 5-6-225(e)(3) for hearing and reporting findings of fact and conclusions of law. The employer, Wal-Mart, contends the trial court erred when it held 1) that Dr. Dan Jackson's treatment of Plaintiff's workers' compensation injury was reasonable and necessary, 2) that Dr. Jackson, a chiropractor, was and should remain an authorized provider, and 3) that Defendant should pay for all future medical-related charges that Dr. Jackson deems reasonable and necessary for the treatment of the compensable injury which is the subject of this action. After careful review of the record, it is the opinion of this Panel that the decision of the trial court should be affirmed.
Macon
Workers Compensation Panel
Pamela Harper v. Travelers Insurance Co., et al
M1999-01913-WC-R3-CV
Authoring Judge: Hamilton V. Gayden, Jr, Special Judge
Trial Court Judge: Hon. James O. Bond, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. Section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. Plaintiff commenced this cause of action on March 18, 1998 alleging that she had developed bilateral carpal tunnel syndrome due to the repetitive use of her hands and arms while employed at Flex Technologies, Inc. The trial court awarded permanent partial disability benefits based on the functional equivalent of 75% to both arms. Flex Technologies, Inc. and The Travelers Insurance Company, respectively, filed this appeal. Appellants contend that the trial court erred 1) by denying Appellants' motion for a continuance of the trial, 2) in accepting the opinion of an independent medical expert over the opinion of the treating physician, and 3) in awarding excessive permanent partial disability benefits. As discussed below, the Panel holds that the trial court's award of permanent partial disability benefits was not excessive and that the judgment of the lower court should be affirmed.
Macon
Workers Compensation Panel
Estate of Annie Hamilton et al. v. Walter Morris,et al.
W1998-00191-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: J. Steven Stafford
Proponents of 1992 will of testatrix offered the will for probate, and three beneficiaries of testatrix's 1987 will filed a complaint contesting the 1992 will. Proponents of the 1992 will filed a response to the complaint contesting the 1992 will which, inter alia, denies that the 1987 will is the last will and testament of the testatrix. The chancellor granted summary judgment against the proponents of the 1992 will, holding that the will was void by virtue of proponents' undue influence on testatrix. The chancellor also granted summary judgment for residuary beneficiary of the 1987 will and admitted the 1987 will to probate as the last will and testament of the testatrix. Appellants, the proponents of the 1992 will and contestants of the 1987 will, have appealed.
Dyer
Court of Appeals
Jason Kim vs. Nancy Boucher
W2000-00427-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: George H. Brown
A minor pedestrian and his father sued automobile driver for personal injury damages sustained by minor when struck by driver's vehicle. The trial court directed a verdict for the automobile driver at the close of plaintiff's proof. Plaintiff has appealed.
Shelby
Court of Appeals
Terry Lynn vs. City of Jackson
W1999-01695-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Roy Morgan
Plaintiffs, personal representative of decedent, an adult child of decedent, and a minor child of decedent, filed a wrongful death suit more than one year after decedent's date of death against the City of Jackson pursuant to the Tennessee Governmental Tort Liability Act (TGTLA). Plaintiffs had filed suit within one year of the date of death in federal court, and after federal court dismissed the case, they filed the instant case two days later in circuit court. The circuit court dismissed plaintiffs' case because it was not filed within one year of the accrual of the cause of action as mandated by TGTLA. Plaintiffs have appealed.
Harry Tusant vs. City of Memphis
W2000-01431-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Floyd Peete, Jr.
Petitioners, Memphis police officers, filed a petition in chancery court for writ of mandamus to require the city to promote them to certain civil service ranks after they successfully completed the promotional process and are otherwise eligible and qualified for promotion. The trial court denied the petition, and petitioners have appealed.
Shelby
Court of Appeals
Mary Slack vs. Bryan Antwine
W2000-00961-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Joe C. Morris
Plaintiffs sued to quiet title to property and to establish boundary line. The trial court found that the deed description of plaintiffs' property established their title to the disputed property. Defendant has appealed. We affirm the judgment of the trial court.
HMC Technologies Corp.vs. Siebe, Inc.
E2000-01093-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Sharon J. Bell
In this declaratory judgment action, the plaintiff, HMC Technologies Corp. a/k/a HMC Technologies, Inc. ("HMC"), sued to enforce an indemnification provision contained in a proposal submitted to, and accepted by, the defendant, Siebe, Inc.
Knox
Court of Appeals
Stephen Benker V.Williams Telecommunications Service, Inc., et al.
E1999-01967-WC-R3-CV
Authoring Judge: Thayer, Sp. J.
Trial Court Judge: Ben W. Hooper II, Circuit Judge
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 employer has appealed from the trial court's ruling the employee is totally disabled raising issues concerning compensability of the claim and the apportionment of the award. Judgment of the trial court is affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Affirmed. THAYER, SP. J., in which ANDERSON, C. J. and BYERS, SR. J., joined. Robert W. Knolton, of Oak Ridge, Tennessee, for the Appellants, William Telecommunications Service, Inc. and Insurance Company of the State of Pennsylvania. Paul G. Summers, Attorney General and Reporter, and E. Blaine Sprouse, Assistant Attorney General, of Nashville, Tennessee, for the Appellee, State Second Injury Fund. J. Anthony Farmer, of Knoxville, Tennessee, for the Appellee, Stephen Benker. OPINION The employer, Williams Telecommunications Service, Inc., and the Insurance Company of the State of Pennsylvania, have appealed from the trial court's ruling finding the employee, Stephen Benker, to be totally disabled. Facts Employee Benker was 51 years of age and was a high school graduate with some vocational training. His prior work history was a laborer, maintenance worker, construction worker and carpenter. He was employed as a telephone computer service system installer on September 23, 1997, when he tripped on some phone cords and fell. When this occurred, he testified he twisted his back, felt sharp pain down his leg and some numbness in his low back. Prior to this accident, he had disc surgery in 1975 or 1976 and returned to work. In 199 he had another disc operation and returned to work. He had complaints from back problems for several years prior to the incident in question and had missed work at different times between 199 and the accident in 1997. He has not worked since the September 23rd incident and states he is not able to work at any of the jobs he has held. His wife, Lisa Benker, testified as to his physical limitations and testified that she does everything both inside and outside their home and that "our entire life has changed, everything is different." Dr. John T. Purvis, a neurosurgeon, performed the second surgery in 199 which involved a ruptured disc. He saw the employee again after the incident in question and stated that he had severe osteoarthritis in his low back and with his prior historyof having disc surgery twice, he would be very sensitive to any type of injury to the back. He concluded that Benker sustained an aggravation and acceleration of his lumbar spondylosis to such an extent that he was unable to work; that there was some anatomical change and he was surprised that he had worked as long as he did. He gave impairments of 1 percent due to the 1976 surgery, 15 percent due to the 199 surgery and 1 percent due to the September 1997 accident. Opposing this medical testimony was the written medical report of Dr. Archer Bishop. He performed an independent medical examination on November 1, 1998 and was of the opinion the accident had only increased his pain and that there was no additional impairment. Witness, Julian Nadolsky, a vocational consultant, testified the employee had "no capacity to earn a living in any occupation" based on the opinion of Dr. Purvis. He admitted that there would be no vocational disability under Dr. Bishop's conclusion. The trial court found the accident of September 23, 1997 rendered the employee totally disabled and apportioned the award of permanent total disability pursuant to subsection (a)(1) of Tenn. Code Ann. _ 5-6-28. The court ordered the employer to pay 6 percent of the award and the state second injury fund to pay the remaining 4 percent. Issues on Appeal The employer and insurance company contend: (1) the accident in question did not cause any anatomical change in the employee's pre-existing condition, (2) the employee was not totally disabled as a result of the last accident and (3) the court was in error in apportioning a greater portion -2-
Knox
Workers Compensation Panel
State vs. Jason Beeler
W1999-01417-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: William B. Acree
The defendant appeals from jury trial convictions for reckless homicide, felony murder, aggravated burglary, and two counts of especially aggravated kidnapping. In this appeal, the defendant alleges insufficient evidence, errors in admitting certain evidence, prosecutorial misconduct, improper instructions, and error in denying his writ of error coram nobis. Concluding that it was reversible error to not instruct on the lesser-included offenses of felony murder, we remand for a new trial on the felony murder count. We affirm the remaining convictions.
Obion
Court of Criminal Appeals
State vs. Garrison
E1997-00045-SC-R11-CD
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Thomas W. Graham
The defendant, John C. Garrison, was convicted by a jury of solicitation to commit first degree murder. In this appeal, he raises two issues: (1) whether trial counsel's failure to communicate a plea bargain offer from the State is per se prejudicial to the extent necessary to satisfy the prejudice prong of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); and (2) whether the trial court committed reversible error when it failed to instruct the jury that the "request," as used in the statutory definition of the offense of solicitation, must be intentional. After a thorough consideration of the record and a full review of the authorities, we conclude that trial counsel's failure to communicate a plea bargain offer does not demonstrate, alone, prejudice sufficient to satisfy the second prong of Strickland. We conclude also that the trial court's omission of certain required language from the jury instruction constitutes harmless error. The judgment of the Court of Criminal Appeals is, therefore, reversed and the case is dismissed.
Bledsoe
Supreme Court
White vs. Revco Discount Drug Centers, Inc.
E1999-02023-SC-R11-CV
Authoring Judge: Justice William M. Barker
Trial Court Judge: Dale C. Workman
We granted permission to appeal in this case to address whether a private employer may be held liable for the negligent actions of an off-duty police officer who was hired by the employer for private security purposes. In the circuit court, the defendant employer moved to dismiss the plaintiffs' wrongful death action for failure to state a claim, and the motion was granted by the trial judge. The Court of Appeals affirmed the dismissal, holding that the actions of the off-duty officer were taken in furtherance of his official duties as a peace officer, and therefore, the defendant employer could not be held liable for the officer's negligent actions. After reviewing the complaint in this case, along with the applicable legal authority, we hold that the complaint does state a claim against the defendant employer for the negligence of the off-duty officer. The judgment of the Court of Appeals is reversed, and the case is remanded to the Knox County Circuit Court for further proceedings consistent with this opinion.
Knox
Supreme Court
State vs. Deborah Graham & Denice Smith
E1999-02248-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Rex H. Ogle
After a jury trial, a Cocke County jury found the Defendants, Deborah Graham and Denice Smith, guilty of the first degree murder of Aaron Smith. Following a sentencing hearing, the trial court sentenced both Defendants to life imprisonment with the possibility of parole. In this appeal as of right, the Defendants raise the following issues: 1) whether the trial court erred in not dismissing the indictments because of the State's failure to provide the Defendants with a speedy trial; 2) whether the trial court erred by allowing the State to decide not to consolidate Alexandro Rivera's case with the Defendants' case, because of a potential Bruton problem, without first granting the Defendants an opportunity to be heard on the issue; 3) whether the trial court erred in failing to sever Defendant Smith's case from Defendant Graham's case; 4) whether the trial court erred in consolidating Defendant Graham's case with Defendant Smith's case; and 5) whether the evidence was sufficient to convict each of the Defendants of first degree murder. After a thorough review of the evidence and the applicable law, we affirm the decision of the trial court.
Cocke
Court of Criminal Appeals
Darrick Edwards vs. State
E1999-01204-CCA-R3-PC
Authoring Judge: Judge Gary R Wade
Trial Court Judge: Douglas A. Meyer
The petitioner, Darrick Edwards, appeals the trial court's denial of his petition for post-conviction relief. Because the petitioner was provided the effective assistance of counsel and knowingly and voluntarily entered his pleas of guilt to first degree murder, conspiracy to commit first degree murder, aggravated robbery, and conspiracy to commit aggravated robbery, the judgment is affirmed.
Hamilton
Court of Criminal Appeals
State vs. DeWayne Greene
E1999-01288-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: O. Duane Slone
Defendant, Dewayne Greene, was convicted by a guilty plea of simple assault, resisting arrest, evading arrest, and reckless endangerment in Hamblen County Circuit Court. The trial court sentenced Defendant to eleven months and twenty-nine days, with three-hundred days to be served in confinement. Defendant was also indicted by the Jefferson County Grand Jury for two counts of aggravated assault arising from incidents involving the same victim as those which generated the Hamblen County indictments. Defendant pled guilty in the Jefferson County Circuit Court with the condition that the trial court "reserve an entry of conviction" until the court heard Defendant's motion to dismiss on grounds of double jeopardy. After the trial court heard and denied Defendant's motion, it sentenced Defendant as a Range I offender to concurrent terms of six years for each count of aggravated assault. In this appeal, Defendant argues that (1) double jeopardy bars the Jefferson County convictions because Defendant's previous Hamblen County convictions were based upon the same conduct, and (2) Defendant's sentence for the aggravated assault convictions is excessive. After a thorough review of the record, we find that only Defendant's sentencing issue is properly before this Court. Defendant failed to properly reserve the double jeopardy issue as a certified question of law for appellate review. We affirm the sentence of six years for count 1 and reduce the sentence for count 2 to five years; the total effective sentence remains at six years.
