TBALink Opinion-Flash

January 27, 1997 -- Volume #3 -- Number #010

Here is today's issue of TBALink Opinion-Flash. What follows is the document name, first paragraph and the names of the attorneys for the parties (If you know one of them you might want to give them a call, chances are they don't know about the opinion yet) of each electronic opinion/rules released TODAY from the three appellate courts.

This Issue IN THIS ORDER:
01-New Opinions From TSC
01-New Opinions From TSC-Rules
08-New Opinions From TSC-Workers Comp Panel
01-New Opinions From TCA
00-New Opinions From TCCA

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George Dean
TBALink Chief Editor


THE CITY OF TULLAHOMA, TENNESSEE, AND THE CITY OF SHELBYVILLE,
TENNESSEE, ET AL.
vs.
BEDFORD COUNTY, TENNESSEE, AND KATHY K. PRATER, COUNTY CLERK, 
BEDFORD COUNTY, TENNESSEE

    WITH ORDER

Court:TSC

Attorneys: 

For Plaintiffs-Appellants:      For Defendants-Appellees:
William G. Colvin               John T. Bobo
Phillip E. Fleenor              Diane M. Segroves
Shumacker & Thompson, P.C.      Bobo, Hunt & Bobo
Chattanooga                     Shelbyville

Stephen M. Worsham
Robertson & Worsham, Gregory & Giffin
Tullahoma

James W. Dempster
McMinnville

Robert F. Hazard
Copeland, Conley & Hazard
Tullahoma

Judge: REID

First Paragraph:

This is a suit for declaratory judgment, filed by the City of
Tullahoma and the City of Shelbyville against Bedford County, in which
the Court of Appeals affirmed the summary judgment by the trial court
that a private act authorizing the Bedford County Commission to impose
a tax on the privilege of disposing of solid waste at landfills in
Bedford County does not violate the equal protection provisions of the
Tennessee Constitution.  This Court, upon finding that the private act
is inconsistent with general laws which mandate a comprehensive plan
for the control of solid waste in the state, is constrained to declare
the private act invalid. COURT OF APPEALS REVERSED; SUMMARY JUDGMENT
ENTERED FOR PLAINTIFFS.

URL:http://www.tba.org/tba_files/TSC/BEDFORDC_OPN.WP6
URL:http://www.tba.org/tba_files/TSC/BEDFORDC_ORD.WP6
Opinion-Flash

JANICE BRUCE
vs.
TECUMSEH PRODUCTS COMPANY

Court:TSC - Workers Comp Panel

Attorneys: 

FOR APPELLANT:                  FOR APPELLEE:
David W. Hessing                Robert T. Kenton III
117 East Wood Street            346 East main Street
Paris, Tennessee 38242          Huntingdon, Tennessee 38344
                         
Judge: Tatum

First Paragraph:

This is an appeal by the defendant/employer, Tecumseh Products
Company, from a judgment in favor of the plaintiff/appellee, Janice
Bruce, awarding workers' compensation benefits based on 45% permanent
partial disability to the body as a whole.  The judgment also held the
defendant responsible for medical expenses incurred by plaintiff for
the care and treatment provided by Dr. Terry O. Harrison and Dr. Ray
W. Hester, physicians not selected by the defendant. AFFIRMED.

URL:http://www.tba.org/tba_files/TSC_WCP/BRUCEJAN_OPN.WP6
Opinion-Flash

JANET CARTER
vs. 
PHOENIX RESTAURANT GROUP OF TENNESSEE, INC., d/b/a/ WENDY'S and AETNA
CASUALTY AND SURETY COMPANY

Court:TSC - Workers Comp Panel

Attorneys:   

For the Appellant:              For the Appellee:
James H. Hickman, III           J. Eddie Lauderback
P. O. Box 259                   C. T. Herndon, III
Knoxville, TN 37901-0259        104 E. Main Street
                                P. O. Box 1160
                                Johnson City, TN 37605-1160

Judge: INMAN

First Paragraph:

The plaintiff was seriously injured in a traffic crash on September
11, 1991.  She settled her tort claim and proceeded to trial of this
workers' compensation case which resulted in a finding that the
'special errand' exception was applicable and that as a result of the
accident and injuries she was 60 percent partially, permanently
disabled and thus entitled to $183.34 per week during 240 weeks,
temporary total benefits during 156 weeks, and medical expenses of
$83,245.91.  In accordance with Tenn. Code Ann. S50-6-112(c), the
defendant was credited with $100,000.00, the amount of the tort
settlement, which the plaintiff insists was only partially subrogable.
AFFIRMED.

URL:http://www.tba.org/tba_files/TSC_WCP/CARTERJ_OPN.WP6
Opinion-Flash

CLIFFORD J. KAPP
vs.
TRANSWAY, INC.

Court:TSC - Workers Comp Panel

Attorneys: 

For Appellant:                          For Appellee:
Charles O. McPherson                    George L. Morrison
Leitner, Warner, Moffitt Williams       Jackson, Tennessee
Dooley & Napolitan
Memphis, Tennessee                         

Judge: Loser

First Paragraph:

In this appeal, the employer contends the evidence preponderates
against the trial court's finding that the employee suffered a
permanent injury arising out of the employment. The panel has
concluded the award of permanent disability benefits should be
reversed. The employee or claimant, Kapp, was employed by the
employer, Transway, on September 29, 1994 as a truck driver. On that
day, the claimant and a co-worker were unloading a tub from a trailer
when the co-worker dropped his end, causing the claimant to fall to
the floor.

URL:http://www.tba.org/tba_files/TSC_WCP/KAPPCJ_OPN.WP6
Opinion-Flash

MARY A. MARSHALL
vs.
BLUE CROSS / BLUE SHIELD OF MEMPHIS and BLUE CROSS / BLUE SHIELD, IPA
APPLE PLAN MEMPHIS, ALSO KNOWN AS SOUTHERN HEALTH PLAN, INC.

Court:TSC - Workers Comp Panel

Attorneys:  

For Appellant:                      For Appellees:
James V. Ball                       Robert D. Meyers
Memphis, Tennessee                  Spicer, Flynn & Rudstrom
                                    Memphis, Tennessee
Judge: Loser

First Paragraph:

In this appeal, the employee contends it was error to summarily
dismiss her claim as being barred by Tenn. Code Ann. section 50-6-203,
a statute of limitation. The panel has concluded the judgment should
be reversed and the case remanded for trial of all issues raised by
the pleadings. The action was commenced by the filing of a complaint
and summons on February 24, 1995 seeking workers' compensation
benefits for injuries and disabilities arising out of and in the
course of the claimant's employment with the defendant, Blue Cross /
Blue Shield of Memphis.  In particular, the employee claims that she
has become permanently disabled from the repetitive trauma of
operating a key punch machine.

URL:http://www.tba.org/tba_files/TSC_WCP/MARSHALM_OPN.WP6
Opinion-Flash

JERRY T. MATHENY
vs.              
INSURANCE COMPANY OF NORTH AMERICA

Court:TSC - Workers Comp Panel

Attorneys:

For Appellant:                  For Appellee:
David Hardee                    Jack F. Marlow
Hardee, Martin & Jaynes         Marlow & Alrutz
Jackson, Tennessee              Memphis, Tennessee
                          
Judge: Loser

First Paragraph:

The issue in this appeal is whether the trial court erred in not
enlarging an award, pursuant to Tenn. Code Ann. section
50-6-241(a)(2). The panel has concluded the judgment should be
affirmed. The injury in question occurred on September 5, 1992 to the
claimant's neck.  The claimant was treated by a physician who assigned
a permanent impairment rating of eight percent to the body.  The
claimant returned to work at a wage equal to or greater than the wage
he was receiving at the time of the injury and was awarded permanent
partial disability benefits on the basis of two and one-half times the
impairment rating, or twenty percent to the body as a whole, paid in a
lump sum.  The award was made on March 22, 1994.

URL:http://www.tba.org/tba_files/TSC_WCP/MATHENY_OPN.WP6
Opinion-Flash

RHONDA MAY 
vs.
GREAT CENTRAL INSURANCE COMPANY

Court:TSC - Workers Comp Panel

Attorneys:  

For Appellant:              For Appellee:
William F. Kendall          Terry J. Leonard
Robert B. Vandiver          Hicks & Leonard
Waldrop & Hall              Camden, Tennessee
Jackson, Tennessee       

Judge: Loser

First Paragraph:

In this appeal, the employer's insurer contends the award of permanent
partial disability benefits based on forty percent to the body as a
whole is excessive. The panel has concluded the judgment should be
affirmed. The employee  or claimant, May, is thirty years old and has
a tenth grade education.  She has no vocational training.  She has
worked in garment production and as a cashier and stocker for
Save-A-Lot, the employer.

URL:http://www.tba.org/tba_files/TSC_WCP/MAYR_OPN.WP6
Opinion-Flash

VICKIE L. PARKS 
vs.
BROTHER INDUSTRIES, USA, INC.

Court:TSC - Workers Comp Panel

Attorneys: 

For Appellant:                  For Appellee:

James F. Schaeffer, Jr.         Betty Ann Milligan
Memphis, Tennessee              Angela Merideth Jones
                                Memphis, Tennessee
                          
Judge: Loser

First Paragraph:

In this appeal, the injured employee or claimant, Parks, contends the
evidence preponderates against the trial court's award of permanent
partial disability benefits based on fifteen percent to the right arm
for her repetitive trauma injury, and in favor of one based on
seventy-five percent to the right arm.  The panel has concluded that
the judgment of the trial court should be affirmed. The claimant is
forty-one years old and has a tenth grade education and a General
Education Diploma.  She gradually developed right carpal tunnel
syndrome from repetitive use of her right hand and wrist in a
typewriter production line.

URL:http://www.tba.org/tba_files/TSC_WCP/PARKSVL_OPN.WP6
Opinion-Flash

RICHARD D. ROBERTS 
vs.
GOODYEAR TIRE AND RUBBER COMPANY

Court:TSC - Workers Comp Panel

Attorneys: 

For Appellant:              For Appellee:
Randy N. Chism              Lance E. Webb
Elam & Glasgow              Union City, Tennessee
Union City, Tennessee                         

Judge: Loser

First Paragraph:

The employer, Goodyear, contends the evidence preponderates against
the trial court's findings that (1) the employee or claimant, Roberts,
did not knowingly and willfully misrepresent his physical condition in
an employment application, (2) the claimant suffered a compensable
injury by accident and (3) the claimant retains a twenty percent
permanent partial disability of twenty percent to the body as a whole.
The panel has concluded the judgment should be affirmed. From 1970
until April, 1988, the claimant was employed by another employer,
Carborundum, as an electrician.  In April, 1988, Carborundum ceased
its operations.  The out-of-work claimant applied to Goodyear for a
job and, in March of 1989, was called to Goodyear regarding available
jobs in its production department.

URL:http://www.tba.org/tba_files/TSC_WCP/ROBERTSR_OPN.WP6
Opinion-Flash

RULE 31 - APPENDIX A
STANDARDS OF PROFESSIONAL CONDUCT FOR RULE 31 MEDIATORS

Court:TSC - Rules

First Paragraph:

Preamble (a) Scope; Purpose. These rules are intended to instill
and promote public confidence in the Alternative Dispute Resolution
process under Rule 31 and to be a guide to neutrals serving under Rule
31.  As with other forms of dispute resolution, mediation must be
built on public understanding and confidence.  Persons serving as
mediators are responsible to the parties, the public, and the courts
to conduct themselves in a manner which will merit that confidence. 
These rules apply to all mediators who participate in court annexed
mediation and are a guide to mediator conduct in discharging
professional responsibilities in the mediation of court cases under
Supreme Court Rule 31.>

URL:http://www.tba.org/tba_files/TSC_Rules/RULE31_APP.WP6
Opinion-Flash

STATE OF TENNESSEE
vs.
BOBBY BAKER

Court:TCCA

Attorneys:  

FOR THE APPELLANT:              FOR THE APPELLEE:
J. Thomas Caldwell              Charles W. Burson
Attorney at Law                 Attorney General & Reporter
114 Jefferson Street            500 Charlotte Avenue
Ripley, TN 38063                Nashville, TN 37243-0497

                                Ellen H. Pollack
                                Assistant Attorney General
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                Elizabeth T. Rice
                                District Attorney General
                                302 Market Street
                                Somerville, TN 38068

                                James Walter Freeland, Jr.
                                Assistant District Attorney General
                                302 Market Street
                                Somerville, TN 38068                        

Judge: JONES

First Paragraph:


The appellant, Bobby Baker, was convicted of aggravated rape, a Class
A felony, and aggravated burglary, a Class C felony, by a jury of his
peers.  The trial court, finding that the appellant was a multiple
offender in the aggravated rape case, imposed a Range II sentence
consisting of confinement for thirty-five (35) years in the Department
of Correction.  The trial court further found that the appellant was a
persistent offender in the aggravated burglary case and imposed a
Range III sentence consisting of confinement for twelve (12) years in
the Department of Correction.  The sentences are to be served
consecutively.  The effective sentence imposed was confinement for
forty-seven (47) years in the Department of Correction.  The appellant
presents eleven issues for review.  After a thorough review of the
record, the briefs of the parties, and the authorities which govern
the issues raised by the appellant, it is the opinion of this Court
that the judgment of the trial court should be affirmed.

URL:http://www.tba.org/tba_files/TCCA/BAKERBOB_OPN.WP6

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