October 1, 1999 Volume 5 -- Number 135 What follows is the case style or name, first paragraph, author's name, and the names of attorneys for the parties of each opinion released eletronically today to TBALink from Tennessee's three appellate courts. This Issue (IN THIS ORDER):   00 New Opinion(s) from the Tennessee Supreme Court 04 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 00 New Opinion(s) from the Tennessee Court of Appeals 02 New Opinion(s) from the Tennessee Court of Criminal Appeals 00 New Judicial Ethics Opinion(s) 00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility   There are three ways for TBALink members to get the full-text versions of these opinions from the Web: Do a key word search in the Search Link area of TBALink.This option will allow you to view and save a plain text version of the opinion. *NEW* Browse the Opinion List area of TBALink. This option will allow you to download the original WordPerfect 6.0 version of the opinion. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original WordPerfect 6.0 document. Lucian T. Pera Editor-in-Chief, TBALink IMOGENE DIXON VS. STATE OF TENNESSEE Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: John T. Milburn Rogers John Knox Walkup 100 South Main Street Attorney General and Reporter Greeneville, TN 37743 Michael E. Moore Solicitor General Heather C. Ross Assistant Attorney General Cordell Hull Building, 2nd Fl 425 Fifth Avenue North Nashville, TN 37243-0488 Judge: PEOPLES First Paragraph: This appeal has been referred to the Special Workers' Compensation Panel of the Supreme Court in accordance with Tennessee Code Annotated S50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The Tennessee Claims Commission dismissed the Appellant's claim for workers' compensation benefits finding the claim was barred by the statue of limitations, by her failure to timely file her Notice of Appeal, and alternatively, that she had failed to prosecute the claim for more than one year after it was filed. We affirm. http://www.tba.org/tba_files/TSC_WCP/DixonvTN2_wpd.wpd JOHN MATTHEWS VS. AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: Mr. P. Allen Phillips Mr. Rickey Boren Attorney at Law Attorney at Law 106 S. Liberty Street 1269 N. Highland Avenue Jackson, TN 38301 Jackson, TN 38301 Judge: LAFFERTY First Paragraph: This workers' compensation appeal was referred to the Special Workers' Compensation Appeals Panel of the Supreme Court pursuant to Tenn. Code Ann. S50-6-225(e)(3) (Supp. 1998) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. This case was tried on June 25, 1998. The trial court found that the plaintiff suffered a work-related injury on June 27, 1997, and awarded the plaintiff forty-five percent permanent partial disability to the body as a whole. The court stated that the plaintiff's present disability, whether due to a heart attack or from heart disease, was caused by the exertion and strain of lifting fifty-pound buckets in 90-degree weather in the course of his employment duties. The defendant, American Manufacturers Mutual Insurance Company, has appealed the trial court's decision. After a careful review of the record, we find that the judgment of the trial court must be reversed. http://www.tba.org/tba_files/TSC_WCP/Matthwsj_opn.wpd VIVIAN L. RUSSELL VS. ADVANCE TRANSFORMER COMPANY Court:TSC - Workers Comp Panel Attorneys: For Appellant: For Appellee: Arthur G. Seymour, Jr. Roger L. Ridenour Robert L. Kahn Ridenour, Ridenour & Fox Knoxville, Tennessee Clinton, Tennessee Judge: LOSER First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this appeal, the employer contends (1) the employee failed to give notice of her injury, (2) the claimant's injury did not arise out of the employment relationship and (3) the award of permanent partial disability benefits is excessive. As discussed below, the panel has concluded the judgment should be affirmed. The claimant initiated this action on May 23, 1997 to recover workers' compensation benefits for her injuries. By its answer, the employer admitted the claimant had, in December of 1995, "complained of an injury to her right arm," but denied "that she complained of an injury to her left arm." It affirmatively averred that it provided her with a panel of three physicians, from which she chose Dr. Randall Robbins; and that Dr. Robbins treated her, referred her to other specialists, and performed surgery on her in April of 1996. The employer did not raise the issue of lack of written notice in its answer. http://www.tba.org/tba_files/TSC_WCP/russvadv_wpd.wpd JIMMY C. WARDLAW VS. STANDARD COFFEE SERVICE COMPANY Court:TSC - Workers Comp Panel Attorneys: For the Appellants: For the Appellee: Carl Wyatt John D. Horne Glassman, Jeter, Edwards & Wade The Winchester Law Firm 26 North Second Street 6060 Poplar Avenue, Suite 295 Memphis, TN 38103 Memphis, TN 38119 Judge: LAFFERTY First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found that the plaintiff's injury arose out of and in the course and scope of his employment, resulting in a twenty-five percent permanent partial disability to the body as a whole. We affirm. http://www.tba.org/tba_files/TSC_WCP/Wardlawj_opn.wpd STATE OF TENNESSEE VS. PTOSHA SIMS and DENISE WATSON Court:TCCA Attorneys: FOR THE APPELLANTS: FOR THE APPELLEE: LARRY E. FITZGERALD PAUL G. SUMMERS Attorney at Law Attorney General & Reporter 22 N. Second, Suite 410 Memphis, TN 38103 J. ROSS DYER Asst. Attorney General 425 Fifth Ave. North 2d Floor, Cordell Hull Bldg. Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General BILLY BOND Asst. District Attorney General 201 Poplar Avenue - Third Floor Memphis, TN 38103 Judge: WITT First Paragraph: The defendants, Ptosha Y. Sims and Denise L. Watson, pleaded guilty in the Criminal Court of Shelby County to unlawful possession of controlled substances with the intent to sell, a class E felony, and to solicitation to commit a felony, a class E felony. See Tenn. Code Ann. S 39-17-417 (1997) (proscriptive statute); S 39-12-102 (1997) (solicitation). For each offense, each defendant was fined $2000 and sentenced as a Range I offender to one year in the workhouse, to be served concurrently. Each defendant agreed to the sentence in her plea agreement. Also, each agreed to have the trial court determine whether her sentence should be suspended. The trial court ordered each defendant to serve the first two months of her sentence in the workhouse followed by one year of probation. The defendants have appealed the sentencing determination and claim that their sentences should have been probated in full. Upon review of the record, the briefs of the parties, and the law, we find no reversible error and affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/Simswat_opn.wpd STATE OF TENNESSEE VS. RICHARD SMITH Court:TCCA Attorneys: FOR THE APPELLANT: FOR THE APPELLEE: CLIFFORD K. McGOWN (on appeal) PAUL G. SUMMERS 113 North Court Square Attorney General & Reporter Waverly, TN 37185 CLINTON J. MORGAN GEORGE MORTON GOOGE (at trial) Counsel for the State District Public Defender 425 Fifth Avenue North Nashville, TN 37243 MICHAEL DEAN RASNAKE Assistant Public Defender JAMES G. (JERRY) WOODALL 227 West Baltimore Street District Attorney General Jackson, TN 38301 BILL R. MARTIN Assistant District Attorney General 777 West Church Street Lexington, TN 38351 Judge: WILLIAMS First Paragraph: The defendant, Richard Smith, appeals a judgment from the Circuit Court of Henderson County revoking his probation. The defendant does not contest that he violated the terms of his probation. He argues only that the trial court erred in fully revoking his probation. He asserts that he should have been incarcerated for a short time and then returned to intensive probation. We AFFIRM the judgment from the trial court. http://www.tba.org/tba_files/TCCA/Smithrch_opn.wpd PLEASE FORWARD THIS EMAIL! Feel free to forward this Opinion Flash on to anyone you know of with an e-mail address. GET A FULL-TEXT COPY OF AN OPINION! See the intrsuctions at the beginning of this edition of Opinion Flash. JOIN TBALink! While Opinion Flash is a free service of the Tennessee Bar Association, you must be a subscriber to TBALink, the premier Web site for Tennessee attorneys, in order to access the full-text of the opinions or enjoy many other features of TBALink. TBA members may join TBALink for just $50 per year. To join, go to: http://www.tba.org/join.html/ SUBSCRIBE TO OPINION FLASH! 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