November 28, 2000
Volume 6 -- Number 192

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):
 
00 New Opinion(s) from the Tennessee Supreme Court
03 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Court of Appeals
03 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
 

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Lucian T. Pera
Editor-in-Chief, TBALink

MERLIN GENE CLETCHER v. WAL-MART STORES, INC.

Court:TSC - Workers Comp Panel

Attorneys: 

Jeffrey P. Boyd and B. Chadwick Rickman, Allen, Kopet & Boyd, Jackson,
Tennessee for the Appellant, Wal-Mart Stores, Inc.

E. Guy Holliman and William Joseph Butler, Farrar & Holliman,
Lafayette, Tennessee for the Appellee, Merlin Gene Cletcher.                         

Judge: GAYDEN

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann.
Section 50-6-225(e)(3) for hearing and reporting findings of fact and
conclusions of law.  The employer, Wal-Mart, contends the trial court
erred when it held 1) that Dr. Dan Jackson's treatment of Plaintiff's
workers' compensation injury was reasonable and necessary, 2) that Dr.
Jackson, a chiropractor, was and should remain an authorized provider,
and 3) that Defendant should pay for all future medical-related
charges that Dr. Jackson deems reasonable and necessary for the
treatment of the compensable injury which is the subject of this
action.  After careful review of the record, it is the opinion of this
Panel that the decision of the trial court should be affirmed.

http://www.tba.org/tba_files/TSC_WCP/cletcher.wpd





PAMELA HARPER v.TRAVELERS INSURANCE COMPANY, ET.AL.

Court:TSC - Workers Comp Panel

Attorneys: 

Deanna B. Johnson, Spicer, Floynn & Rudstrom, Nashville, Tennessee,
for the Appellants, Flex Technologies, Inc. and The Travelers
Insurance Company.

Frank D. Farrar and William Joseph Butler, Farrar & Holliman,
Lafayette, Tennessee for the Appellee, Pamela Harper.                         

Judge: GAYDEN

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann.
Section 50-6-225(e)(3) for hearing and reporting of findings of fact
and conclusions of law.  Plaintiff commenced this cause of action on
March 18, 1998 alleging that she had developed bilateral carpal tunnel
syndrome due to the repetitive use of her hands and arms while
employed at Flex Technologies, Inc.  The trial court awarded permanent
partial disability benefits based on the functional equivalent of 75%
to both arms.  Flex Technologies, Inc. and The Travelers Insurance
Company, respectively, filed this appeal.  Appellants contend that the
trial court erred 1) by denying Appellants' motion for a continuance
of the trial, 2) in accepting the opinion of an independent medical
expert over the opinion of the treating physician, and 3) in awarding
excessive permanent partial disability benefits.  As  discussed below,
the Panel holds that the trial court's award of permanent partial
disability benefits was not excessive and that the judgment of the
lower court should be affirmed.

http://www.tba.org/tba_files/TSC_WCP/harperpamela.wpd





JOHN WELSH, v. UNIVERSAL FASTENERS, Inc., and THE YASUDA FIRE AND
MARINE INSURANCE COMPANY

Court:TSC - Workers Comp Panel

Attorneys: 

Christopher L. Dunn, Columbia, Tennessee, for the appellant, John
Welsh.

Delicia R. Bryant, Brewer, Krause & Brooks, Nashville, Tennessee, for
the appellees, Universal Fasteners, Inc., and The Yasuda Fire and
Marine Insurance Company.                         

Judge: TURNBULL

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann.
S50-6-225(e)(3) for hearing and reporting of findings of fact and
conclusions of law.  The employee contends  the trial court erred in
granting the employers motion for summary judgment on grounds that the
claim was barred by the statute of limitations.  We conclude that the
running of the one year statute of limitations was tolled from the
time the employee requested assistance of the Department of Labor
until his claim for medical benefits was rejected by the claims
specialist.

http://www.tba.org/tba_files/TSC_WCP/welsh.wpd





IN RE: PROPOSED TENNESSEE RULES OF PROFESSIONAL CONDUCT
ORDER

Court:TSC - Rules
                         
Judge: ANDERSON

First Paragraph:

The Tennessee Bar Association has petitioned this Court for the
adoption of proposed Tennessee Rules of Professional Conduct to
replace the present Code of Professional Responsibility that is set
forth in Rule 8 of the Tennessee Supreme Court Rules.  The new
proposed rules are attached as Exhibit A to the Bar's petition.

http://www.tba.org/tba_files/TSC_Rules/profconduct_ord.wpd





STATE OF TENNESSEE v. EMIT KEITH CODY

Court:TCCA

Attorneys:

Susanna Thomas, Assistant Public Defender, for the appellant, Emit
Keith Cody.

Paul G. Summers, Attorney General and Reporter; Marvin S. Blair, Jr.,
Assistant Attorney General; Al Schmutzer, Jr., District Attorney
General; and James B. Dunn, Assistant District Attorney General, for
the appellee, State of Tennessee.                          

Judge: WELLES

First Paragraph:

The Defendant, Emit Keith Cody, was convicted of first degree murder
and sentenced to life imprisonment.  He appealed, and we reversed his
conviction and remanded the case for a new trial based on our
conclusion that the trial court's failure to give a limiting
instruction to the jury on the use of the State's main witness's prior
inconsistent statement constituted plain error.  See State v. Emit
Keith Cody, No. E1999-00068-CCA-R3CD, 2000 WL 190227 (Tenn. Crim.
App., Knoxville, Feb. 16, 2000).  The State applied for permission to
appeal to the supreme court, which granted permission for the purpose
of remanding the case to this Court for reconsideration in light of
the supreme court's recent decision in State v. Smith, 24 S.W.3d 274
(Tenn. 2000).  After revisiting this issue, we remain of the opinion
that the trial court committed plain error by failing to give a
limiting instruction.  Accordingly, the Defendant's conviction is
reversed, and the case is remanded for a new trial.

http://www.tba.org/tba_files/TCCA/codyemk.wpd





STATE OF TENNESSEE v. JOSHUA DAILEY

Court:TCCA

Attorneys: 

Shawn G. Graham, Maryville, Tennessee, Assistant District Public
Defender, for the appellant, Joshua Dailey.

John Bobo, Assistant District Attorney General; and R. Stephen Jobe,
Assistant District Attorney General, for the appellee, State of
Tennessee.                         

Judge: WOODALL

First Paragraph:

The Defendant, Joshua Dailey, pled guilty to two counts of the Class E
felony offense of violation of the Habitual Motor Vehicle Offender
Act.  The trial court sentenced Defendant to two years for each
conviction, to be served consecutively.  Furthermore, the trial court
ordered the first sentence to be served in split confinement, with 300
days incarceration in the county jail followed by placement in
Community Corrections.  The Defendant appeals, challenging the length
of the total effective sentence and arguing that he should serve the
entire sentence in Community Corrections.  We affirm the judgment of
the trial court.

http://www.tba.org/tba_files/TCCA/jdailey.wpd





JOSEPH SHEPHERD v. STATE OF TENNESSEE

Court:TCCA

Attorneys: 

Gerald L. Gulley, Jr., Knoxville, Tennessee (on appeal) for the
appellant, Joseph Shepherd (pro se at trial).

Paul G. Summers, Attorney General and Reporter; R. Stephen Jobe,
Assistant Attorney General; Jerry N. Estes, District Attorney General;
and William W. Reedy, Assistant District Attorney General, for the
appellee, State of Tennessee.                         

Judge: TIPTON

First Paragraph:

In consolidated cases, the petitioner appeals the trial court's
dismissals of his post-conviction petitions as barred by the one-year
statute of limitations.  He contends, and the state concedes, that he
filed the petitions within one year of the final order following his
resentencing hearing.  We reverse the dismissals and remand the cases
for further proceedings.

http://www.tba.org/tba_files/TCCA/shepherdj.wpd

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