June 2 , 2000 Volume 6 -- Number 083 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. This Issue (IN THIS ORDER):   01 New Opinion(s) from the Tennessee Supreme Court 03 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 01 New Opinion(s) from the Tennessee Court of Appeals 02 New Opinion(s) from the Tennessee Court of Criminal Appeals 00 New Opinion(s) from the Tennessee Attorney General (PDF format) 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. Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion. Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. Lucian T. Pera Editor-in-Chief, TBALink LINNIE CLEEK v. WAL-MART STORES, INC. Court:TSC Attorneys: Donna Brown Wilkerson, Jackson, Tennessee for the appellant, Ms. Linnie Cleek. Jeffrey P. Boyd, Jackson, Tennessee; B. Chadwick Rickman, Jackson, Tennessee, for the appellee, Wal-Mart Stores, Inc. Judge: BARKER First Paragraph: The primary issue in this workers' compensation direct appeal is whether the evidence preponderates against the trial court's findings that the appellant is 20% permanently and partially disabled. We are also asked to decide whether the appellant is entitled to an additional period of temporary total disability benefits after she made a nominal return to work but later resigned because of pain associated with her original injury. This case was argued before the Special Workers' Compensation Appeals Panel on August 13, 1999, but before an opinion was issued by the Special Panel, the case was transferred to the Supreme Court for an en banc hearing. http://www.tba.org/tba_files/TSC/CreekWal-Mart.wpd REBECCA DAY VS. TRAVELERS INSURANCE COMPANY Court:TSC - Workers Comp Panel Attorneys: For the Appellant: For the Appellee: Bruce D. Fox Weldon E. Patterson 108 S. Main Street 800 South Gay Street P.O. Box 530 Knoxville, TN 37929 Clinton, TN 37716 Judge: CORLEW First Paragraph: This worker's compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with the provisions of Tennessee Code Annotated S50-6-225 (e) (3) (1998 Supp.) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The Trial Court, after considering all of the evidence, found the worker to lack credibility, and determined that she was not entitled to recover under the workers' compensation law, and after consideration of the entire record, we affirm the Trial Court's decision. http://www.tba.org/tba_files/TSC_WCP/day.wpd KIRBY DIES v. PERMA PIPE, INC. Court:TSC - Workers Comp Panel Attorneys: For Appellants: For Appellee: Randolph A. Veazey B. Keith Williams Connie Jones Taylor, Taylor, Lannom, & Williams Glasgow & Veazey Lebanon, Tennessee Nashville, Tennessee Judge: CLEMENT First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Panel of the Supreme Court in accordance with Tenn. Code Ann. 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer alleged eight bases of appeal: 1) whether the injury arose out of and in the course of the claimant's employment, 2) whether notice of the injury was provided to the employer, 3) whether the trial court was within its discretion in accepting the testimony of one expert over that of another, and 4) whether the amount of the award was appropriate. The panel affirms on each issue. http://www.tba.org/tba_files/TSC_WCP/kirbydies.wpd RACHEL JEANETTE McCORMICK v. YASUDA FIRE & MARINE INSURANCE COMPANY, ET AL. Court:TSC - Workers Comp Panel Attorneys: Bruce Timothy Pirtle, McMinnville, Tennessee, for the appellants, Yasuda Fire & Marine Insurance Company and Calsonic Aeries Corporation, Inc. Frank D. Farrar and William J. Butler, Lafayette, Tennessee, for the appellee, Rachel Jeanette McCormick. Judge: GAYDEN First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with the Tenn. Code Ann. Section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The Appellant, Calsonic Yorozu Corporation (hereinafter "CYC") raises seven issues arguing that the trial court erred by (1) failing to find Plaintiff's claim was barred by Plaintiff's voluntary intoxication and willful disregard of safety procedures, (2) holding that part of Plaintiff's disability was due to bilateral carpal tunnel syndrome, (3) not applying the "concurrent injury rule", (4) holding Plaintiff gave adequate notice of her bilateral carpal syndrome to Defendants, (5) awarding compensation for unauthorized medical treatment, (6) improperly ordering a lump sum award, and (7) entering its judgment contrary to the Rules of Civil Procedure. http://www.tba.org/tba_files/TSC_WCP/MccormickRJ.wpd AMERICAN MATERIALS TECHNOLOGIES, LLC.,v. THE CITY OF CHATTANOOGA and THE CHATTANOOGA CITY COUNCIL, and ADAMS LITHOGRAPHING COMPANY, ET AL. Court:TCA Attorneys: John R. Anderson, Harry R. Cash and B. Allison Edgmon, Grant, Konvalinka & Harrison, P.C., Chattanooga, Tennessee for Plaintiff-Appellee. Phillip A. Noblett, City Attorney's Office, City of Chattanooga, Tennessee, for Defendants- Appellees. John W. Murrey, III, Hugh J. Moore, Jr., Philip B. Whitaker, Jr., and William R. Hannah, Witt, Gaither & Whitaker, P.C., Chattanooga, Tennessee for Intervening Defendants/Appellants. Judge: FRANKS First Paragraph: This is an appeal from the Chancellor's refusal to allow movants to intervene in the case. Movants filed a motion to intervene after the parties had entered a consent judgment, and the Chancellor overruled the motion. On appeal, we affirm the Chancellor's determination. http://www.tba.org/tba_files/TCA/AmtlvChatt.wpd STATE OF TENNESSEE v. JAMES M. LANE, JR. Court:TCCA Attorneys: Larry Roddy, Sale Creek, Tennessee, for the appellant, James M. Lane, Jr. Paul G. Summers, Attorney General & Reporter, R. Stephen Jobe, Assistant Attorney General, William H. Cox III, District Attorney General, David M. Denney, Executive Assistant District Attorney General. Judge: WITT First Paragraph: James M. Lane, Jr. appeals by permission of the trial and appellate courts. Indicted for two counts of aggravated perjury, he alleges that the trial court abused its discretion in failing to reverse the district attorney general's denial of pretrial diversion. Because the prosecutor relied upon improper grounds for denying diversion, we reverse the trial court's finding that the prosecutor did not abuse his discretion in denying diversion. We remand to the trial court with instructions that the prosecutor enter into a memorandum of understanding for pretrial diversion with the defendant. http://www.tba.org/tba_files/TCCA/LaneJM.wpd STATE OF TENNESSEE v. ROBERT A. NORRIS and LIDA MEADOR WITH DISSENTING OPINION Court:TCCA Attorneys: Joe L. Finley, Assistant Public Defender, for the appellant, Robert A. Norris. Randall A. York, Crossville, Tennessee, for the appellant, Lida Meador. Paul G. Summers, Attorney General & Reporter, Ellen H. Pollack, Assistant Attorney General, William Edward Gibson, District Attorney General, David Alan Patterson and Anthony J. Craighead, Assistant District Attorneys General, for the appellee, State of Tennessee. Judge: WITT First Paragraph: This direct appeal presents a certified question of law pursuant to Rule 37(b)(2)(i), Tennessee Rules of Criminal Procedure. The defendants pleaded guilty to manufacture of a controlled substance, subject to reservation of a certified question. In their certified question, the defendants contend that law enforcement officers conducted an unreasonable search and seizure when the officers made thermal image scans of their home, that the search warrant did not allege sufficient facts to establish probable cause, and that the information upon which the search warrant was issued was stale. One defendant received judicial diversion and is not properly before this court on a Rule 3 appeal, and we decline to grant her a Rule 10 extraordinary appeal. We conclude that thermal imaging is not an unconstitutional search, and the affidavit information was not stale. However, because the search warrant affidavit failed to establish probable cause for the search, we reverse the trial court's denial of Norris's motion to suppress. Norris's conviction is vacated and his charge is dismissed. Meador's appeal is dismissed. http://www.tba.org/tba_files/TCCA/NorrisRA.wpd WITH DISSENTING OPINION http://www.tba.org/tba_files/TCCA/NorrisRAD_dis.wpd PLEASE FORWARD THIS E-MAIL! 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! 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