Tennessee Administrative Office of the Courts

Appellate Court Opinions

Format: 10/31/2014
Format: 10/31/2014
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Court of Appeals 11/21/96
X2010-0000-XX-X00-XX
Court of Appeals 11/21/96
X2010-0000-XX-X00-XX
Court of Appeals 11/21/96
01A01-9603-CV-00108
Williamson County Court of Appeals 11/20/96
01A01-9605-CV-00200
Davidson County Court of Appeals 11/20/96
01A01-9602-CH-00086
Davidson County Court of Appeals 11/20/96
01A01-9604-CH-00178
Davidson County Court of Appeals 11/20/96
03C01-9508-CC-00232
Anderson County Court of Criminal Appeals 11/20/96
Alphonso Bradford v. State of Tennessee
M1998-00078-CCA-MR3-PC
Davidson County Court of Criminal Appeals 11/20/96
X2010-0000-XX-X00-XX
Court of Appeals 11/20/96
Terry Hambrick v. Vecellio & Grogan, Inc.
03S01-9603-CH-00030
This workers' compensation appeal has been referred to the Special W orkers' 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 drove a heavy truck for the defendant's construction firm. When asked to tell the Court "what happened when you got hurt," he replied: Well I was backing up to get loaded and the loader operator picked one, a big old rock up and he went to put it in the bed of the truck and when he did, he started to let it down and the rock just come out all at once. And when it did, it just rattled, you know, just shook the truck around and around. The accident occurred August 4, 1993. He was seen by Dr. Judson McGowan, an orthopedic specialist, on August 1, 1993, complaining of neck and thoracic spine pain. His condition was diagnosed as acute cervical lumbar strain which was treated conservatively over many months involving sophisticated testing procedures and referrals to specialists in other disciplines, some of whom believed the plaintiff had a psychological overlay with magnification of symptoms. Dr. McGowan testified that "this patient is heading toward the road of a chronic pain syndrome," that he had a five to ten percent impairment, and that he was able to return to lighter work. Dr. Stephen Kimbrough, a neurologist, saw the plaintiff on February 9, 1993, for the evaluation of neck and arm pain. He found no nerve involvement and little or no pathology. He believed that the plaintiff had some pain but "felt that it was somewhat exaggerated and there was some overlay to the pain as well." Like Dr. McGowan, he thought the plaintiff was likely a candidate for chronic pain syndrome, and that he exaggerated his symptomatology. He expressed no opinion about impairment, but felt that he could return to work. Dr. Paul Brown, a specialist in internal medicine and cardiology, testified that he had treated the plaintiff for a number of years for various illnesses, one of which was hypertension which he attributed in part to pain, but he declined to reference the hypertension to the accident and expressed no opinion about impairment. 2
Unicoi County Workers Compensation Panel 11/20/96
Kevin G. Mckenzie v. Blount Memorial Hospital, Inc., Royal Insurance Company and Tha Workers' Compensation Group
03S01-9603-CV-00028
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. Plaintiff, Kevin G. McKenzie, has appealed from the action of the trial court in dismissing his claim by sustaining a motion for summary judgment filed by defendants, Blount Memorial Hospital, Inc., and THA Workers' Compensation Group. The circuit judge ruled the claim was barred by reason of the expiration of the one year statute of limitations. The complaint was filed on November 4, 1994, alleging plaintiff had sustained an injury on September 13, 1993, and on May 7, 1994. The hospital was provided insurance coverage by THA Workers' Compensation Group to December 31, 1993, and Royal Insurance Company for the period in question during 1994. The hospital and THA Group filed the motion for summary judgment contending any claim for the September, 1993, injury was barred. The motion is supported by two affidavits and Plaintiff's Answers To Interrogatories. The affidavit of Joe B. Hill, Jr., the Director of Human Resources, recites plaintiff originally injured himself during January, 1993; he reported on September 13, 1993, he had experienced a recurrence of pain from the injury and he received two sessions of therapy; the last medical treatment for the September 13, 1993, work-related aggravation of his pre-existing condition was on September 15, 1993; that on May 7, 1994, he reported to their emergency room requesting treatment; and the hospital did not make any voluntary payments to any health care providers nor was plaintiff billed for any treatment by the hospital. The other affidavit was executed by Mary Jane Johnson, a family nurse- practitioner of the hospital. This document indicates she saw plaintiff during January, 1993, for evaluation of a neck and shoulder injury which plaintiff said he had sustained a few days earlier; on September 13, 1993, he reported he had re- injured his neck and shoulder; he was referred to a medical group where he was seen the same day but he did not return for a follow-up appointment on October 4, -2-
Knox County Workers Compensation Panel 11/20/96
Joe Rines v. Mahle, Inc. and Royal Insurance Company
03S01-9509-CV-00101
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 appeal results from the refusal of the trial court to modify a judgment entered April 2, 1993 that the employee sustained no permanent disability as a result of a job-related injury in 199 but was entitled to future medical expenses associated with any spinal fusion he elected to undergo. The petition to modify was filed November 23, 1994. The plaintiff alleged that he "has increased disability from surgery performed by Dr. Wallace over and above that which he had when this matter was previously heard." The defendants [hereafter "employer"] moved to dismiss, alleging that the "Court has no jurisdiction to entertain the Petition filed on behalf of the plaintiff or to award him any relief and, further, that neither the provisions of T.C.A. _ 5-6-231 nor of Rule 6.2, TENN. R. CIV. P., are applicable herein." Thereafter, the plaintiff announced that he was relying exclusively upon T.C.A. _ 5-6-231, which provides: 5-6-231. Lump payments final -- Modification of periodic payments for more than six months. -- All amounts paid by employer and received by the employee or the employee's dependents, by lump sum payments, shall be final, but the amount of any award payable periodically for more than six (6) months may be modified as follows: (1) At any time by agreement of the parties and approval by the court; or (2) If the parties cannot agree, then at any time after six (6) months from the date of the award an application may be made to the courts by either party, on the ground of increase or decrease of incapacity due solely to the injury. In such cases, the same procedure shall be followed as in _ 5-6-225 in case of a disputed claim for compensation. The trial court granted the motion to dismiss, holding that since there was no "award payable periodically for more than six (6) months" the statute was inapplicable. On appeal the plaintiff argues that the award of future medical expenses qualifies as an "award payable periodically" within the purview of the statute, as contrasted to the argument of the employer that "an award payable periodically"
Knox County Workers Compensation Panel 11/20/96
02A01-9510-CV-00225
Shelby County Court of Appeals 11/19/96
State of Tennessee vs. Willie H. Johnson
02C01-9510-CR-00316

This is an appeal as of right pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. A Shelby County jury found the Defendant guilty of burglary. The trial judge found the Defendant to be a career offender and sentenced him to twelve years in the Department of Correction. In this appeal, he argues that the evidence presented at trial was insufficient to support the jury’s finding of guilt beyond a reasonable doubt. We disagree and affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 11/19/96
Petitioner, Relying In Part Upon State v. Roger Dale Hill, No. 01C01-9508-Cc-00267
02C01-9611-CC-00397
Lake County Court of Criminal Appeals 11/19/96
Sidney Eugene Abbott and Willie Bean v. Firestone Tire & Rubber Co. and Liberty Mutual Insurance Company
02S01-9510-CV-00097
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. In this consolidated appeal, the employees or claimants, Abbott and Bean, contend the evidence preponderates against the trial judge's finding that they have not suffered a compensable occupational disease. The panel finds the judgment should be affirmed. Bean worked for Firestone for 39 years as a janitor, mold cleaner and production worker. Abbott worked for Firestone for 15 years as a maintenance man. Both were exposed to dust and fumes from chemicals used in the manufacturing of tires and other rubber products. Before the plant closed in 1983, both men began to experience difficulty breathing. Both are, or were during their years of work for the employer, heavy smokers. They developed chronic obstructive pulmonary disease (COPD). The diagnoses were first made in 1989 and 199, by Dr. Richard Wunderink, a physician board certified in both pulmonary and critical care medicine. The doctor also diagnosed Abbott with asbestosis and asbestos related pleural plaques. In his testimony, Dr. Wunderink opined that the exposure at Firestone contributed to and aggravated the COPD and that the asbestosis and asbestos related pleural plaques were directly related to exposure to asbestos. The doctor diagnosed Bean as having asbestosis and asbestos related pleural plaques, in addition to COPD. He also opined that Bean's asbestosis and pleural plaques were "caused by his occupational exposure to asbestos." The COPD was aggravated by exposure to dust at work. Dr. Paul Wheeler, a staff radiologist and chief of the pneumoconiosis section at Johns Hopkins, studied the x-rays of both claimants and opined in his testimony that neither claimant showed evidence of occupational disease related to exposure to asbestos. At the suggestion of Dr. Wheeler, the trial judge ordered CT scans, the results of which were read by separate doctors, one chosen by the claimants and one chosen by the defendants. Both found the claimants lungs to be normal, except that Bean apparently suffered from emphysema. The trial judge found that the evidence failed to establish the elements necessary for an award of workers' compensation benefits for an occupational disease. 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. section 5-6-225(e)(2). Where the trial judge has seen and heard the witnesses, especially with issues of credibility, where weight to be given oral testimony are 2
Shelby County Workers Compensation Panel 11/19/96
X2010-0000-XX-X00-XX
Court of Appeals 11/18/96
X2010-0000-XX-X00-XX
Roane County Court of Appeals 11/18/96
Mary Benson v. The Kroger Company and Cna Insurance Company
02S01-9601-CH-00002
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court inaccordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer and its insurer contend (1) the award of permanent disability benefits based on one hundred percent to both arms is excessive, (2) it was error to award certain medical expenses, (3) it was error to award discretionary costs, and (4) it was error to award judgment against both defendants. The employee contends by cross appeal (1) the trial court erred in limiting the recovery for permanent partial disability to four hundred weeks, (2) the trial court erred in its award of temporary total disability benefits, (3) the trial court erred in allowing the employer credit for temporary total disability benefits paid, and (4) the appeal is frivolous. As discussed below, the panel has concluded the judgment should be affirmed. The employee or claimant, Benson, is 53 years old with a high school education and experience as a meat wrapper in grocery stores. She has no skills or training. She gradually developed bilateral carpal tunnel syndrome while so employed at Kroger. She had carpal tunnel surgery on her left arm in November of 1992 and returned to work at Kroger in January of 1993 as a meat wrapper. She continued to have problems with her hands and became disabled to perform her duties, which included heavy lifting and repetitive use of both hands in a cold environment. Medical benefits were discontinued in July of 1994. She retains a ten percent permanent impairment to her left arm and twenty percent impairment to her right arm, superimposed upon a pre-existing vascular disorder. As a result of the combination of the compensable injury and pre-existing condition, she is medically restricted from repetitive use of the hands, heavy lifting or working in a cold environment. The trial court awarded permanent partial benefits for four hundred weeks, based on one hundred percent permanent disability to both arms, medical expenses of two unauthorizedphysicians and futuremedical benefits. 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. section 5-6-225(e)(2). Where the trial judge has seen and heard the witnesses, especially if issues of credibility are involved, considerable deference must be accorded those circumstances on review. Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315 (Tenn. 1987). 2
Shelby County Workers Compensation Panel 11/18/96
Mary J. Drozd, v. Hermitage Villa Condominiums Homeowners Association, Inc., Hillsboro Property Management Company, Inc., and Gary Waller and State of Tennessee
01A01-9408-CV-00366

From the decision of the Trial Court dismissing a portion of the original complaint and from the subsequent decision of the Trial Court granting summary judgment for the Defendants as to a second ground of recovery sought, the Plaintiff was granted an interlocutory appeal to this court.

Davidson County Court of Appeals 11/17/96
Linda Plunk v. National Health Investors
M1999-01596-COA-R3-CV
This appeal involves a nursing home visitor who injured herself by stepping into a grassy depression in the building's landscaping. The visitor and her husband filed suit in the Circuit Court for Lawrence County alleging that the nursing home's owner had failed to maintain the premises in a reasonably safe condition. A jury apportioned sixty percent of the fault to the nursing home and forty percent to the visitor and awarded the visitor $40,000 for medical expenses and permanent impairment. Both parties filed post-trial motions after the trial court entered a $24,000 judgment for the visitor. The visitor and her husband sought a new trial or an additur because the jury had not awarded damages for pain and suffering. The nursing home filed a Tenn. R. Civ. P. 50.02 motion for a judgment in accordance with its motion for a directed verdict. The trial court denied the nursing home's motion and suggested a $5,000 additur. The nursing home accepted the additur, and both parties appealed. The visitor asserts that the trial court erred by failing to grant a new trial, and the nursing home asserts that the trial court erred by denying its Tenn. R. Civ. P. 50.02 motion. We have determined that the trial court erred by denying the nursing home's Tenn. R. Civ. P. 50.02 motion because it was not reasonably foreseeable that visitors would be walking on the grassy area where the plaintiff fell. Accordingly, we reverse the judgment.
Lawrence County Court of Appeals 11/17/96
01C01-9508-CC-00269
Wayne County Court of Criminal Appeals 11/15/96
01C01-9510-CR-00337
Davidson County Court of Criminal Appeals 11/15/96
03C01-9505-CR-00130
McMinn County Court of Criminal Appeals 11/14/96