Tennessee Administrative Office of the Courts

Appellate Court Opinions

Format: 03/31/2015
Format: 03/31/2015
01C01-9605-CR-00191
Davidson County Court of Criminal Appeals 05/16/97
01C01-9605-CR-00203
Davidson County Court of Criminal Appeals 05/16/97
01C01-9605-CR-00215
Wilson County Court of Criminal Appeals 05/16/97
01C01-9606-CC-00257
DeKalb County Court of Criminal Appeals 05/16/97
01C01-9607-CC-00289
Court of Criminal Appeals 05/16/97
State vs. John Childress
02C01-9605-CC-00154
Lauderdale County Court of Criminal Appeals 05/16/97
State vs. James Marion
02C01-9605-CR-00158
Shelby County Court of Criminal Appeals 05/16/97
Nancy Olivieri vs. Paul Oliveri
02A01-9512-CV-00282
Court of Appeals 05/16/97
Vowell Ventures vs. The City of Martin
02A01-9604-CH-00090
Weakley County Court of Appeals 05/16/97
Kenneth & Bertie Downing vs. City of Memphis
02A01-9608-CV-00177
Shelby County Court of Appeals 05/16/97
Earl Barrett v. City of Lebanon, et al.
01S01-9608-CH-00158
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 is a 4-year-old man whose work experience has essentially been limited to manual labor. On August 2, 1994, during the course and scope of his employment by the City of Lebanon and while using a jackhammer, he sprained a neck muscle while attempting to dislodge the implement. He returned to light duty on February 6, 1995 and full duty on March 2, 1995. The issue is whether the evidence preponderates against the judgment of the trial court that the plaintiff retained a 12.5% permanent partial disability to his body as a whole as a result of the cervical strain. Our review is de novo on the record with the presumption of the correctness of the judgment unless the evidence otherwise preponderates. T.C.A. _ 5-6-225(e)(2) and TENN. R. CIV. P. 13(d). The treating physician was Dr. W. Garrison Strickland, board-certified in psychiatry and neurology. His examination and testing revealed mild degenerative changes in the cervical spine. He testified that the results of a functional capacity evaluation were inconsistent, meaning that the plaintiff's efforts were not always sincere. Dr. Strickland declined to state an opinion as to whether the plaintiff had any impairment because there were no objective findings and the functional capacity evaluation was inconsistent. The plaintiff was referred to Dr. Jack Fishbein, an orthopedic surgeon, by his attorney. He saw the plaintiff only on one occasion and testified that he found muscle tightness and limited range of motion with pain radiating from the right shoulder. He assessed 5% impairment to the body as a whole. The trial judge found the testimony of Dr. Fishbein to be more credible than the testimony of Dr. Strickland, who, as stated, declined to state an opinion because he found no objective symptoms and does not give impairment ratings if the functional capacity evaluation is inconsistent. 2
Wilson County Workers Compensation Panel 05/16/97
Eddie Bryant v. Opryland USA, Inc., et al.
01S01-9611-CH-00231
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 defendants in this appeal contend that the Chancellor's award of benefits to the plaintiff on the basis of a percentage to the body as a whole was error in light of the proof which established injuries only to both of plaintiff's arms which are scheduled members. The panel concludes that the award of benefits on the basis of sixty percent to the body as a whole should be modified to provide for an award of sixty percent to both arms. Tenn. Code Ann. _ 5-6-27(3)(A)(ii)(w) (1996 Supp.) The judgment of the trial court is therefore affirmed as modified. The plaintiff, Eddie Bryant, was thirty-six years old at the time of trial. Following his graduation from high school, Bryant served three years in the Navy and received training as a mechanic in diesel repair and in boiler repair. He completed three different training courses at Gravely Equipment, Briggs Equipment School and Echo Power Equipment. Subsequent to his discharge from the Navy, Bryant began working for the defendant Opryland as a mechanic in the horticulture department. Although Bryant was also in charge of the trash crew and performed some tree trimming, his primary job was that of mechanic. In 1992, Bryant began dropping tools and experiencing numbness in his hands. Bryant first saw Dr. Steven Salyers, a medical doctor who specializes in orthopedics, on September 18, 1992. Based upon testing and examination of Bryant, Dr. Salyers diagnosed Bryant as having carpal tunnel syndrome in his right hand. Initially, Dr. Salyers prescribed conservative treatment for Bryant, however, that treatment proved unsuccessful. On January 28, 1993, Dr. Salyers performed corrective release surgery on Bryant's right wrist. Bryant returned to work on light duty, but began experiencing pain and discomfort in his left hand. Electrodiagnostic studies done on March 12, 1993 revealed mild carpal tunnel syndrome. Dr. Salyers -2-
Montgomery County Workers Compensation Panel 05/16/97
Herbert Earl Carter v. Itt Hartford
01S01-9606-CH-00111
Carter County Workers Compensation Panel 05/16/97
Naomi Gentry v. Lumbermens Mutual Co., et al.
01S01-9608-CH-00165
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 action was filed January 18, 1995 seeking benefits for a back injury sustained on April 6, 1994 while employed by the defendant hospital. The allegations of the complaint were generally denied, thus requiring the plaintiff to prove every element of her case by a preponderance of the evidence, except when relying upon TENN. CODE ANN. _ 5-6-242 which requires clear and convincing evidence as a predicate. The appellee allegedly suffered a back injury while lifting a patient. She was initially treated by a general practitioner in Gainsboro, Dr. E. M. Dudney, who referred her to Dr. Ray Hester, a neurosurgeon in Nashville, on May 5, 1994. Dr. Hester had treated the plaintiff for injuries she sustained in an automobile accident in 1982. These injuries involved, inter alia, a ruptured disc. She was released from treatment in 1983 with a 15 percent permanent partial impairment, and her activities were restricted. As stated, Dr. Hester saw the plaintiff eleven years later for this workers' compensation injury. He ordered a CT scan which revealed no significant pathology or findings and ultimately diagnosed her complaint as a lumbar strain. On July 19, 1995, he advised the employer by letter that: " . . . Mrs. Gentry apparently had a back strain. She had underlying degenerative joint disease in her back which was the result of her previous injuries to her back and not the more recent one where she was doing some lifting. I don't think she has any permanent impairment in relation to her lifting incident and no anatomical changes as a result of it." At some point before his deposition was taken for proof, Dr. Hester changed his opinion. He testified that the appellee had a five percent permanent impairment solely as a result of her 1994 injury. He found no objective signs of radiculopathy or loss of structural integrity. He imposed moderate lifting restrictions, and thought the appellee should be able to return to work. He found no anatomical changes in her back. Significantly, he testified that his impairment ratings of 15 percent for the 1982 injury and five percent for the 1994 injury were "separate and not a part and parcel of 2
Smith County Workers Compensation Panel 05/16/97
Donald Groton, Etc. v. Traverlers Insurance Co.
01S01-9607-CV-00154
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 of findings of fact and conclusions of law. This Court is once again called upon to decide wither an injury sustained en route to work is compensable. We conclude that it is not and reverse the trial court's finding that it is. Regrettably, this case involves more than an injury. Donald Groton died from injuries he sustained in a car wreck while traveling to work on January 14, 1994. He worked for John Coleman Hayes, P.C. an engineering firm under contract with Nashville's airport authority to supervise noise abatement modifications being made to homes in the Antioch and Donelson neighborhoods close to the airport. Groton was one of two inspectors who examined the work of the contractors. He used his own vehicle in his work. The employer paid Groton mileage for driving from the office to job sites and from one job site to another. The employer did not pay Groton for driving from his home to the office or to the first job site of the day if Groton went there first. Likewise, the employer did not pay Groton for travel away from the office or from the last job site at the end of the work day. On the date of the accident, Groton did not report for duty at either the office or a job site as usual. James Michael Smith, John Coleman Hayes's construction manager, called Groton the day before and instructed him to go to a job site of a sister company, John Coleman Hayes Construction Company. Smith needed some surveying work done and Groton knew how to do it. -2-
Wilson County Workers Compensation Panel 05/16/97
Franklin Hartsell v. Dallas & Mavis Forwarding Co., et al.
01S01-9608-CH-00164
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, age 54, suffered a job-related myocardial infarction on March 1, 1994. A coronary arteriogram revealed an 8% blockage of his left anterior descending artery which was alleviated by an angioplasty procedure which reduced the blockage to less than 15%. Conservative treatment followed, and he was released to return to full employment on January 1, 1994. From that day forward, the plaintiff has worked steadily and without incident. In July 1991, the plaintiff was hospitalized with chest pains. A cardiac catheterization was performed, which revealed a serious lesion in his left circumflex coronary artery at the left ventricular ridge, with another lesion in his left anterior descending coronary artery. After the 1994 infarction, the lesion in the left anterior artery was substantially worsened. The employer insists that the award is excessive because it was improperly onerated with liability for impairment resulting from pre-existing coronary artery disease. Liability for benefits resulting from impairment as a consequence of the myocardial infarction is conceded. The dispositive issue at trial was the extent of the plaintiff's partial permanent disability. The Chancellor found that the plaintiff had a 5% permanent partial disability and awarded benef its accordingly. Our review is de novo on the record, accompanied by the presumption that the trial court's judgment is correct unless the evidence preponderates otherwise. T.C.A. _ 5-6-225(e)(2). The treating physician, Dr. K.P. Channabasappa, testified that the plaintiff's impairment was 29%, which may be extrapolated to Category II of the AMA Guidelines. He stated in a pre-deposition letter that "it is 29%" and on direct examination testified that the impairment was 29%. There was no countervailing testimony offered. 2
Franklin County Workers Compensation Panel 05/16/97
Margaret Ann Scruggs v. National Health Corp.
01S01-9504-CH-00052
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. For the reasons set forth below, the judgment of the trial court is affirmed. The plaintiff, Margaret Ann Scruggs, injured her neck on December 25, 1991, while employed as a nurse's aid by the defendant, National Healthcorp, L.P., d/b/a/ Merihil Health Care Center, Inc. The plaintiff, was 52 years old at the time of trial. She did not finish the seventh grade. Her employment history consists of working as a private sitter and in various restaurants and factories. She has had training as a nurse's aide. Plaintiff was first treated for her work-related neck injury by Dr.Kenneth J. Phelps. She informed Dr. Phelps that she was experiencing pain from her neck that was radiating down into her left arm causing loss of grip strength in her hand. Dr. Phelps confirmed plaintiff's complaint of pain and loss of grip strength, scheduled physical therapy and imposed lifting restrictions. Dr. Phelps continued to see plaintiff through October, 1992, because she continued to complain of symptoms similar to those she had complained of after the accident. She also indicated she had additional problems such as pain down her back and into her left leg, spasms in her back, difficulty sleeping and panic attacks. From January of 1993 through January of 1994, plaintiff was treated by Dr. Richard Fishbein, an orthopedic surgeon. Dr. Fishbein diagnosed plaintiff as 2
Marshall County Workers Compensation Panel 05/16/97
Michael Siniard v. Saturn Corporation
01S01-9609-CV-00175
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, age 43, remains employed by Saturn Corporation, where he began in 199. He developed carpal tunnel syndrome in both wrists in 1994 and was provided with splints, medication, and access to physical therapy. In time the plaintiff was referred to Dr. James W iesman, an orthopedic surgeon, who performed a carpal tunnel release on his right hand. He returned to work for Saturn which assigned him a job not involving repetitive use of his hands. The plaintiff filed this complaint seeking benefits for a permanent partial disability occasioned by the asserted impairment caused by the carpal tunnel syndrome. The trial judge awarded benefits based on a finding of ten percent permanent partial disability to his right arm. The plaintiff appeals, insisting the award is inadequate for the reasons hereafter discussed. The treating physician testified that the release surgery was successful and that the plaintiff retained a two (2) percent impairment to his right arm. The plaintiff was referred by his attorney to Dr. David W. Gaw, also an orthopedic surgeon, for evaluation. Dr. Gaw saw the plaintiff only on one occasion. He conducted various tests and concluded that the plaintiff had a ten percent permanent partial impairment to his right arm. He disdained as unauthorized by the AMA Guides an evaluation of two (2) percent impairment as found by Dr. Wiesman. Our 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 584 (Tenn. 1991). The plaintiff criticizes Dr. Wiesman for his alleged failure to use the AMA Guides. While Dr. Wiesman apparently was not enamored by the Guides, he testified that "I used those Guides," and that "I did the impairment rating based on 2
Maury County Workers Compensation Panel 05/16/97
Naomi Gentry v. Lumbermens Mutual Co., et al.
01S01-9608-CH-00165
Smith County Workers Compensation Panel 05/16/97
Brandy Thatcher, b/n/f vs. Bobby Wyatt, et al
02A01-9605-CH-00114
Haywood County Court of Appeals 05/15/97
Georgia Keys vs. Memphis Carwash, Inc.
02A01-9605-CV-00113
Shelby County Court of Appeals 05/15/97
State vs. Mario Gutierrez
02C01-9502-CC-00043
Hardin County Court of Criminal Appeals 05/15/97
State vs. Johnny Smith
02C01-9602-CR-00061
Shelby County Court of Criminal Appeals 05/15/97
Gentry vs. Gentry
01A01-9611-CH-00512
Montgomery County Court of Appeals 05/14/97
Burgess & Carter vs. Mead Johnson
01A01-9609-CV-00436
Coffee County Court of Appeals 05/14/97