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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