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| State of Tennessee v. James Charles Cavaye
M2001-02154-CCA-R3-CD
Following a jury trial, Defendant, James Charles Cavaye, was convicted of first degree felony murder and especially aggravated robbery. He was sentenced to life imprisonment for the murder, and to a consecutive sentence of twenty-four years for the especially aggravated robbery. In this appeal as of right, Defendant contends that (1) the trial court failed to fulfill its role as the thirteenth juror; (2) the accomplice's testimony was insufficiently corroborated; (3) the trial court erred in applying enhancement factors in setting Defendant's sentence for especially aggravated robbery; and (4) the trial court erred in ordering Defendant's sentences to run consecutively. Based upon our review of the record, we affirm the judgment of the trial court.
Authoring Judge: Judge Thomas T. Woodall
Originating Judge:Judge Steve R. Dozier |
Davidson County | Court of Criminal Appeals | 12/11/02 | |
| City of Oak Hill v. AAMP
M2001-00688-COA-R3-CV
This appeal concerns the City of Oak Hill's efforts to enforce its exclusively residential zoning restrictions over a parcel of land situated at the city's eastern border. The city appeals the trial court's finding that "parcel 109" was located outside of Oak Hill's city boundary and, therefore, not subject to the city's zoning ordinances. We affirm the action of the trial court.
Authoring Judge: Judge William B. Cain
Originating Judge:Carol L. Mccoy |
Davidson County | Court of Appeals | 12/11/02 | |
| James Staggs v. Lori Staggs
M2001-01192-COA-R3-CV
The trial court transferred custody of the parties' two children from the mother to the father. The mother argues on appeal that there was no change of circumstances to support a change of custody, and no proof that the change would be in the best interest of the children. We affirm the trial court.
Authoring Judge: Judge Ben H. Cantrell
Originating Judge:Leonard W. Martin |
Dickson County | Court of Appeals | 12/11/02 | |
| Peter Zabaski v. Mary Ann Zabaski
M2001-02013-COA-R3-CV
The trial court granted a divorce to the parents of an only child with a history of severe medical problems, and awarded them joint custody. The wife contends on appeal that the trial court's order of custody and visitation was not in the child's best interest. She also argues that the court erred by setting the husband's child support obligation too low, and by failing to award her alimony in futuro. We affirm the trial court.
Authoring Judge: Judge Ben H. Cantrell
Originating Judge:Marietta M. Shipley |
Davidson County | Court of Appeals | 12/11/02 | |
| F. T. Greer v. Joseph Marci
M2001-02536-COA-R3-CV
This appeal arises from the denial of the Chancery Court of Sumner County of Plaintiffs' request for an injunction. The dispute involves the construction of a brick entranceway which connects a county road to Defendants' driveway easement over the Plaintiffs' property. The entranceway lies within the "metes and bounds" of a county road. The Chancellor refused to grant an injunction ordering removal of the entranceway holding that the county was the only party with standing to seek removal of obstructions within the right-of-way of a county road. We disagree with the Chancellor and find that the Plaintiffs own fee simple title to the pertinent portion of the right-of-way and therefore have standing to assert their ownership rights independent of the county. We therefore reverse the finding of the Chancellor and remand the case for further proceedings.
Authoring Judge: Judge Thomas W. Graham
Originating Judge:Tom E. Gray |
Sumner County | Court of Appeals | 12/11/02 | |
| Brenda Barton v. Anvil International, Inc.,
W2001-02523-WC-R3-CV
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. In this appeal, the employer insists (1) the trial court erred in considering an examining physician's opinion as not being based on statutory guidelines and (2) the award of permanent partial disability benefits based on 5 percent to one arm and 45 percent to the other arm is excessive.1 As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and MICHAEL MALOAN, SP. J., joined. Jeffery G. Foster, Jackson, Tennessee, for the appellant, Anvil International, Inc. Scott G. Kirk, Jackson, Tennessee, for the appellee, Brenda Barton MEMORANDUM OPINION The employee or claimant, Ms. Barton, initiated this civil action to recover workers' compensation disability benefits for a work-related injury. The employer, Anvil International, denied liability for permanent disability. After a trial on the merits, the trial court awarded, among other things, benefits based on permanent partial disability to both arms. The employer has appealed. 1 An injury to both arms is a scheduled injury and the better practice is to average the awards to each arm for a single award base d on a per centage of b oth arm s. Scales v. City of Oak Ridge, 53 S.W .3d 649 at n. 1 (Tenn. 2 1). Th e issue d eem ed w aived since it wa s not raised in this a ppe al. For injuries occurring on or after July 1, 1985, appellate 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. _ 5-6-225(e)(2) (21 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Joe C. Morris, Chancellor |
Chester County | Workers Compensation Panel | 12/11/02 | |
| James Pemerton & Deborah Pemerton v. Beauty Wall Painting
M2001-01638-COA-R3-CV
This is a breach of warranty case. The plaintiff homeowners contracted with the defendant painter to have their home painted. The contract included a one-year warranty on labor and materials. After the work was completed, the paint began to peel, blister, and separate from the wood siding. The homeowners sued the painter under the warranty. The trial court found that the homeowners complained of the problems within the one-year warranty period. The trial court awarded the homeowners damages for the amount paid to the painter, substantial damages for repairs, and discretionary costs. On appeal, the painter argued that the trial judge failed to properly understand the testimony of the parties regarding the painter's actions after being informed of the paint problems, and therefore, improperly discredited the painter's testimony with regard to the issue of the date the homeowners told the painter about the defective work. We affirm, finding that the defendant painter failed to show any basis for reversing the credibility determination of the trial court.
Authoring Judge: Judge Holly M. Kirby
Originating Judge:Carol L. Soloman |
Davidson County | Court of Appeals | 12/11/02 | |
| Paul E. Johnson v. The Metropolitan Government Of
M2001-00633-COA-R3-CV
Authoring Judge: Judge Don R. Ash
Originating Judge:Carol L. Mccoy |
Davidson County | Court of Appeals | 12/11/02 | |
| Sandra Sparkman & Joe Sparkman vs. Bluecross Blueshield
E2002-00932-COA-R3-CV
Plaintiffs' action was dismissed by the Trial Court on the grounds plaintiffs failed to exhaust administrative appeals. On appeal, we Vacate and Remand.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:Samuel H. Payne |
Hamilton County | Court of Appeals | 12/11/02 | |
| Ray Wright v. Brittany Pate
11-01-135-M
Originating Judge:A. Andrew Jackson |
Dickson County | Court of Appeals | 12/11/02 | |
| McLane Co. v. State
M2002-00838-COA-R3-CV
Licensed wholesale tobacco distributor filed petition against the State seeking the disclosure of identities of all licensed tobacco wholesale distributors in the State of Tennessee pursuant to the provisions of the Tennessee Public Records Act. State opposed petition on the grounds that disclosure of this information was controlled by the taxpayer confidentiality provisions of the revenue statutes. Chancery Court granted petition and ordered disclosure of the names and addresses of all licensed wholesale tobacco distributors in Tennessee but, on the state's motion, stayed its order pending appeal. State appeals. We reverse and dismiss.
Authoring Judge: Judge W. Frank Crawford
Originating Judge:Irvin H. Kilcrease, Jr. |
Davidson County | Court of Appeals | 12/11/02 | |
| Edward Howell vs. NHC Healthcare
E2002-01321-COA-R3-CV
The Trial Court refused to enforce an Agreement for Mediation and Arbitration. On appeal, we Affirm.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:Harold Wimberly |
Knox County | Court of Appeals | 12/11/02 | |
| Sandra Kay Powers, et al. v. American Interstate Insurance Company, et al
W2001-02751-WC-R3-CV
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. In this appeal, the employer insists the competent evidence preponderates against the trial court's finding that the deaths of two employees occurred in the course of their employment and in favor of a finding that the employees had materially deviated from their employment at the time of their deaths in a vehicular accident. As discussed below, the panel has concluded the judgment of the trial court should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and W. MICHAEL MALOAN, SP. J., joined. Stephen Craig Kennedy, Selmer, Tennessee, for the appellants, Staton's Home Furnishings and American Interstate Insurance Company Art D. Wells, Jackson, Tennessee, for the appellee, Sandra Kay Powers, as guardian and next friend of Jessica Witherspoon, Billy Joe Witherspoon and Cody Witherspoon, minor children of David Witherspoon, deceased Gayden Drew, Jackson, Tennessee, for the appellee, Robbie McEwen, administrator of the Estate of Timothy Gallimore, deceased MEMORANDUM OPINION By these consolidated civil actions, the claimants sued to recover workers' compensation benefits, as provided by the Workers' Compensation Act, Tenn. Code Ann. _ 5-6- 11 et seq, for the accidental deaths of David Witherspoon and Charles Timothy Gallimore on July 29, 1999. The employer, Staton's Home Furnishings, and its insurer, American Interstate Insurance Company, denied liability. After a trial on the merits, the trial court awarded death benefits to the estate of Gallimore and dependents' benefits to the children of Witherspoon. The employer and its insurer have appealed. For injuries occurring on or after July 1, 1985, appellate 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. _ 5-6-225(e)(2) (21 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:George R. Ellis, Chancellor |
Gibson County | Workers Compensation Panel | 12/11/02 | |
| Greg Melton v. Gerald Melton
M2002-00532-COA-R3-CV
Beneficiaries of irrevocable insurance Trust filed a Complaint against the Trustees, seeking to have the corpus of the trust distributed and the Trust terminated by its own terms. One Trustee, acting pro se, answered the Complaint. Beneficiaries filed a Motion for Summary Judgment supported by their joint affidavits. No response or countervailing affidavit was filed, and an Order was entered granting the Motion. Trustee appeals. We affirm
Authoring Judge: Judge W. Frank Crawford
Originating Judge:J. B. Cox |
Bedford County | Court of Appeals | 12/11/02 | |
| John Garland vs. Tonia Garland
E2002-00949-COA-R3-CV
In this divorce action, the wife appeals the alimony award and amount of attorney's fees awarded to her. On appeal, we Affirm as Modified.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:James W. Mckenzie |
Rhea County | Court of Appeals | 12/11/02 | |
| State of Tennessee v. Sherrie Mae Crawford
E2002-01292-CCA-R3-CD
Pursuant to a plea agreement, the Defendant pled guilty to theft under $500 and to violating an habitual traffic offender order. She entered Alford pleas to possession of marijuana with intent to sell, possession of drug paraphernalia, and two counts of contributing to the delinquency of a minor. Her total effective sentence was two years as a Range I standard offender plus eleven months and twenty-nine days on supervised probation. The manner of service of the two-year sentence was to be determined by the trial court following a sentencing hearing. The trial court denied alternative sentencing and ordered the Defendant to serve the entire two years in the Tennessee Department of Correction. In this appeal, the Defendant argues that the trial court erred in failing to impose an alternative sentence. Concluding that the record supports the trial court's denial of alternative sentencing, we affirm the judgments of the trial court.
Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge Phyllis H. Miller |
Sullivan County | Court of Criminal Appeals | 12/11/02 | |
| Herman Howard. v. American Industries Services
M2001-02711-COA-R3-CV
The Chancery Court of Davidson County dismissed the complaint in this case for the plaintiffs' failure to respond to discovery requests. The plaintiffs assert on appeal that the chancellor abused her discretion. We affirm the chancery court.
Authoring Judge: Judge Ben H. Cantrell
Originating Judge:Ellen Hobbs Lyle |
Davidson County | Court of Appeals | 12/11/02 | |
| State v. Patty Grissom
M2002-00279-CCA-R3-CD
The appellant, Patty Francine Grissom, was convicted of the simple possession of a Schedule II controlled substance and she received a probationary sentence of eleven months and twenty-nine days. Subsequently, the trial court revoked the appellant's probation upon finding that she had possessed drugs and drug paraphernalia while on probation. On appeal, the appellant raises several issues concerning her probation revocation. Upon reviewing the record and the parties' briefs, we affirm the judgment of the trial court.
Authoring Judge: Judge Norma McGee Ogle
Originating Judge:Charles D. Haston, Sr. |
Warren County | Court of Criminal Appeals | 12/11/02 | |
| Pigeon Forge vs. William Loveday
E2002-00643-COA-R3-CV
Landowner seeks a new trial in eminent domain case on grounds that the Trial Court admitted in evidence the price paid for the land 19 years earlier. We reverse the Trial Court's Judgment.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:Richard R. Vance |
Sevier County | Court of Appeals | 12/11/02 | |
| T. v. Swaw v. Trane Unitary Products Commercial, A/K/A
M2001-02793-WC-R3-CV
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. In this appeal, the employer and its insurer question the award of permanent partial disability benefits based on 75 percent to the body as a whole and insist the preponderance of the evidence supports only a lesser award of permanent disability benefits to the left knee. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and WILLIAM H. INMAN, SR. J., joined. Wm. G. McCaskill, Jr., Taylor, Pigue, Marchetti & McCaskill, Nashville, Tennessee, for the appellants, Trane Unitary Products Commercial a/k/a Trane Company, and Travelers Indemnity Company of Illinois Julia Smith, Clarksville, Tennessee, for the appellee, T. V. Swaw MEMORANDUM OPINION The employee or claimant, Mr. Swaw, initiated this civil action to recover workers' compensation benefits for an alleged work-related injury to both legs occurring on September 29, 1997. The employer, Trane, and its insurer, Travelers, admitted liability for the injury to the claimant's left knee, but denied any other liability. Following a trial on February 5, 21, the trial court awarded, among other things, future medical benefits and permanent partial disability benefits based on 75 percent to the body as a whole. The employer and its insurer have appealed. For injuries occurring on or after July 1, 1985, appellate 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. _ 5-6-225(e)(2) (21 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:John H. Gassaway, Judge |
Montgomery County | Workers Compensation Panel | 12/09/02 | |
| Dexter Lebron Joshen v. Mckee Foods Corporation
E2002-00194-WC-R3-CV
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 trail court found the plaintiff had sustained a compensable injury to his shoulder and fixed an award of 3 percent vocational disability to the body as a whole. The defendant says the trial judge fixed this award on the basis of a 6 percent medical impairment to the body rather than on the basis of 4 percent medical impairment, which the defendant asserts is the correct medical impairment rating. The plaintiff responds to the defendant's claim by saying he is satisfied by the ruling of the trial court on the award to the plaintiff. However, the plaintiff says if we reverse the trial court's judgment he wishes us to address the four assignments of error raised by him. These assignments concern the treatment of the plaintiff by a Dr. Alan Odom, who did surgery on the plaintiff's shoulder. The trial court found the treatment by Dr. Odom was not shown to be related to the compensable injury the plaintiff suffered while working for the defendant. We affirm the judgment of the trial court.1 Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed JOHN K. BYERS, SR. J., in which WILLIAM M. BARKER, J. and HOWELL N. PEOPLES, SP. J., joined. Charles D. Lawson and J. Barlett Quinn, Chattanooga, Tennessee, attorneys for appellant, McKee Foods Corporation. Gary W. Starnes, Chattanooga, Tennessee, attorney for appellee, Dexter Lebron Joshen. 1 We will not discuss the issues raised by the plaintiff other than to say the record supports the action of the trial judg e in ruling on D r. Od om's tre atment of the p laintiff. MEMORANDUM OPINION At the time of this trial, the plaintiff was thirty-eight years of age. He is a high-school graduate and has no post high school education, vocational or academic. He is married and the father of a child who was seventeen at the time of trial. For the most part the plaintiff's work history shows him to have been employed in low paying jobs such as a busboy and dishwasher, work as a brick mason during high school and as a cook in a restaurant. The plaintiff became employed by the defendant in 1985, and continued in this job until May 17, 1999. The plaintiff's job required him to remove cartons from a conveyor and stack them into a trailer (truck) for delivery. This required lifting, turning and reaching above the shoulders. There is no dispute that the plaintiff injured his right arm and shoulder on May 17, 1999 in the course of doing the stacking required by his job. Medical Evidence 2 Dr. Dennis Lee Stohler, an orthopaedic surgeon, first saw the plaintiff on June 11, 1999. He diagnosed the plaintiff's condition as a result of the injury as left rotator cuff tendinitis with subacromial bursitis with mild left biceps tendinitis. Dr. Stohler treated the plaintiff and determined he had reached permanent medical impairment of 1 percent to the upper extremity, which in medical jargon encompasses the shoulder, which we consider a part of the whole body. He converted this to 6 percent medical impairment to the body as a whole. Dr. Stohler testified that a clinical examination showed that the plaintiff's range of motion had improved by December 21, 1999. He testified that if there had been improvement the original assessment of 6 percent "can be certainly [inaccurate] in that original impairment." Upon being further questioned about the range of motion, Dr. Stohler testified it would reflect a 4 percent whole body impairment. Dr. Stohler based this evaluation on the 4th Edition of the AMA Guidelines. Upon further questioning, Dr. Stohler testified he did not give any consideration for pain in reaching his evaluation. The evidence shows the plaintiff continued to suffer pain and the 4th Edition considers pain as pertinent in fixing the extent of medical impairment from an injury. Discussion There is little discussion needed in this case. The only question is whether the trial court should have found the medical impairment was 6 percent or 4 percent to the body as a whole. 2 We will not discuss the testimony of Dr. Odom because Dr. Odom testified the injury he treated could not have been cause d by the M ay 17 , 199 9 injur y. -2-
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:W. Frank Brown, III, Chancellor |
Knox County | Workers Compensation Panel | 12/09/02 | |
| James Robert Crawford v. State of Tennessee
E2002-01535-CCA-R3-PC
The defendant, indicted on counts of especially aggravated robbery, conspiracy to commit aggravated robbery, theft over $1,000.00, and evading arrest, entered pleas of guilt to aggravated robbery and theft over $1,000.00. The trial court imposed an effective sentence of ten years. There was no appeal. Later, the defendant filed a petition for post-conviction relief and the trial court granted a delayed appeal. The issues presented for our review are as follows: (1) whether the guilty plea was knowingly and voluntarily entered; (2) whether trial counsel was ineffective by failing to file a direct appeal or by failing to timely file a motion to reduce the sentence; (3) whether the trial court properly modified an illegal sentence; and (4) whether the sentence imposed was excessive. The judgment is affirmed.
Authoring Judge: Presiding Judge Gary R Wade
Originating Judge:Judge Lillie Ann Sells |
Cumberland County | Court of Criminal Appeals | 12/09/02 | |
| Charles Juricak v. Exclusively Temporary, Inc.,
M2001-03101-WC-R3-CV
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. In this appeal, the Second Injury Fund (the fund) questions the competency and sufficiency of a Stipulation of Settlement from another state to permit recovery from the fund. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Criminal Court Affirmed JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and WILLIAM H. INMAN, SR. J., joined. Paul G. Summers, Attorney General and Reporter, and E. Blaine Sprouse, Assistant Attorney General, Nashville, Tennessee, for the appellant, James Farmer, Director, Division of Workers' Compensation, Tennessee Department of Labor and Workforce Development, Second Injury Fund B. Keith Williams, Lebanon, Tennessee, for the appellee, Charles Juricak D. Brett Burrow, Brewer, Krause & Brooks, Nashville, Tennessee, for the appellees, Exclusively Temporary, Inc. and Zurich American Insurance Company MEMORANDUM OPINION The employee or claimant, Mr. Juricak, initiated this civil action against the employer, Exclusively Temporary, Inc., its insurer, Zurich Insurance Company, and the Second Injury Fund to recover workers' compensation benefits for an allegedly work related shoulder injury that occurred on August 2, 2. The complaint further alleged that the injury and resulting disability were superimposed upon a previous injury for which the claimant had received an award under Florida's Workers' Compensation Law. The employer and its insurer, by a cross-claim against the Second Injury Fund, averred that the claimant was totally and permanently disabled as a result of the second injury and that the employer's liability should not exceed 1 percent disability. The Second Injury Fund denied any liability. After a trial, the trial court awarded permanent partial disability benefits, in favor of the claimant and against the Second Injury Fund, based on 95 percent permanent partial disability to the body as a whole. The fund has appealed. For injuries occurring on or after July 1, 1985, appellate 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. _ 5-6-225(e)(2) (21 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:J. O. Bond, Judge |
Macon County | Workers Compensation Panel | 12/09/02 | |
| State of Tennessee v. Darren A. Dewalt
W2001-02778-CCA-R3-CD
Defendant, Darren A. Dewalt, appeals as of right from the trial court's order revoking his probation and reinstating his original sentence to be served in the Shelby County Correction Center. Defendant contends that the trial court erred by revoking his probation based upon an unidentified and unsubstantiated laboratory report indicating that Defendant had used drugs in violation of his probation. Based upon a review of the entire record, we affirm the judgment of the trial court.
Authoring Judge: Judge Thomas T. Woodall
Originating Judge:Judge James C. Beasley, Jr. |
Shelby County | Court of Criminal Appeals | 12/09/02 | |
| Hershel Willard Hill v. Wilson Sporting Goods Co.,
M2001-02820-WC-R3-CV
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) (22 Supp.) for hearing and reporting of findings of fact and conclusions of law. The trial court ruled as a matter of law that the employee's request for reconsideration under Tenn. Code Ann. _ 5-6-241(a)(2) (21 Supp.) was barred because (1) his initial award was below the two and one-half times multiplier cap and (2) his employment was not terminated. The employee contends that the trial court erred on both grounds. As discussed below, the panel has concluded that _ 5-6-241(a)(2) requires neither a capping at two and one-half times the initial award nor a termination. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Chancery Court Vacated and Remanded JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and JAMES L. WEATHERFORD, SR. J., joined Russell D. Hedges, Moore & Hedges, Tullahoma, Tennessee, for the appellant, Hershel Willard Hill Edward A. Hadley, Gideon & Wiseman, Nashville, Tennessee, for the appellees, Wilson Sporting Goods Company and Kemper Insurance Company MEMORANDUM OPINION Pursuant to Tenn. Code Ann. _ 5-6-241(a)(2), the employee or claimant, Hershel Hill, initiated this civil action for reconsideration of a previous award of permanent partial disability benefits for injuries suffered in a work-related accident on April 23, 1997. After a hearing, the trial court disallowed reconsideration because (1) the previous award was less than two and one-half times the highest impairment rating and (2) the claimant had not been discharged by the employer. The claimant has appealed. Appellate 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. _ 5-6-225(e)(2) (21 Supp.). Conclusions of law are subject to de novo review on appeal without any presumption of correctness. Nutt v. Champion Intern. Corp., 98 S.W.2d 365, 367 (Tenn. 1998). Issues of statutory construction are solely questions of law. Bryant v. Genco Stamping & Mfg. Co., 33 S.W.3d 761, 765 (Tenn. 2). Workers' compensation laws must be construed so as to ensure that injured employees are justly and appropriately reimbursed for debilitating injuries suffered in the course of service to the employer. Story v. Legion Ins. Co., 3 S.W.3d 45, 454 (Tenn. 1999). Mr. Hill worked for the employer, Wilson Sporting Goods, for more than thirty years until his retirement in 1999. On April 23, 1997, he had a collision with an electric cart at work. The resulting back injury was initially treated by Dr. Richard A. Bagby and Dr. Robert M. Dimick. Both physicians assigned a zero permanent impairment rating for the claimant's injury. A third physician, Dr. Richard Fishbein, evaluated the claimant and assigned a permanent impairment rating of five percent to the whole person. On May 5, 1997, the claimant returned to his job at Wilson at a wage equal to or greater than his wage before the injury. Accordingly, by Tenn. Code Ann. _ 5-6-241(a), his potential permanent disability award was limited to two and one-half times his medical impairment rating. On October 23, 1998, the trial court awarded benefits based on 7.5 percent permanent partial disability to the body as a whole, or one and one-half times the impairment rating assigned by Dr. Fishbein. In the year that followed, the claimant continued to work at Wilson while suffering from back pain. His last day at work was October 26, 1999, after which he took sick leave. On October 27, 1999, he visited Dr. Paul McCombs, who informed Mr. Hill that surgery was not an option for his back condition. With the assistance of Dr. McCombs, the claimant obtained social security disability benefits. He also retired from Wilson under its disability plan. At the trial of this cause, the claimant testified that the pain in his back worsened in the time following the first hearing, but the nature of the pain did not change. The trial court declined the invitation to reconsider Mr. Hill's claim based on two independent and unrelated grounds. First, the court held that reconsideration was appropriate only where the initial award was capped by the two and one-half multiplier limit. Second, the court held that an employee must be terminated in order to be eligible for reconsideration of the initial award. Thus, the trial court concluded, because the initial award was less than two and one-half times Dr. Fishbein's rating and the claimant had not been terminated, Mr. Hill's application for reconsideration was rejected as a matter of law. According to Tennessee Code Annotated section 5-6-241(a)(1), [f]or injuries arising on or after August 1, 1992, in cases where an injured employee is eligible to receive any permanent partial disability benefits, pursuant to _ 5-6-27(3)(A)(i) and (F), and the -2-
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Jeffrey F. Stewart, Chancellor |
Wilson County | Workers Compensation Panel | 12/09/02 |