April 16, 2001 Volume 7 — Number 069 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 10 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 04 New Opinion(s) from the Tennessee Court of Appeals 00 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 BOYD ADAMS v. GALAXY LOGISTICS, et al. Court:TSC - Workers Comp Panel Attorneys: Robert R. Davies, Davies & Humphrey, Nashville, Tennessee, for the appellants, Galaxy Logistics, Inc. and Connecticut Insurance Company. Neal Agee, Jr., Agee & Agee, Lebanon, Tennessee, for the appellee, Boyd Adams. Judge: LOSER 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. In this appeal, the employer insists (1) the trial court erred in finding that the worker's injury to his left leg was caused by a work-related injury to the right leg, (2) that the award of permanent partial disability benefits based on 80 percent to both legs is excessive, and (3) the trial court erred in commuting the award to a lump sum. As discussed below, the panel has concluded the judgment should be affirmed. http://www.tba.org/tba_files/TSC_WCP/adamsboydopn.wpd SHIRLEY ALEXANDER v. BRIDGESTONE/FIRESTONE, INC. Court:TSC - Workers Comp Panel Attorneys: Kitty Boyte, Nashville, Tennessee, for the appellant, Bridgestone/Firestone, Inc. William Joseph Butler and E. Guy Holliman, Lafayette, Tennessee, for the appellee, Shirley Alexander. Judge: BYERS First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff filed two suits against the plaintiff. One of the suits was for an alleged injury to or aggravation of a pre-existing injury to her right leg. The case was assigned the trial court number of 98-WC-1614. The other suit, filed on the same day was for an alleged injury to the plaintiff's left knee or leg and was assigned number 98-WC-1615. The cases were consolidated for trial and are consolidated for the appeal. The trial judge found the plaintiff did not show any injury to her right knee or leg or any compensable aggravation thereof. The trial judge found the plaintiff had sustained a compensable injury to her left knee and awarded her seventy percent permanent partial disability for the injury. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/alexandershiropn.wpd JAMES R. DAVIDSON v. MONTGOMERY COUNTY SCHOOL SYSTEM Court:TSC - Workers Comp Panel Attorneys: Donald D. Zuccarello, Nashville, Tennessee, for the appellant, James R. Davidson David J. Silvus, W. Timothy Harvey, Clarksville, Tennessee, for the appellee, Montgomery County School System Judge: RUSSELL First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated Section 50- 6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The Appellant appeals from the dismissal of his claim and seeks an award for permanent partial disability benefits, temporary total disability benefits, and specified medical expenses. After a complete review of the entire record, the briefs of the parties, and the applicable law, we affirm the dismissal of the claim by the trial court. http://www.tba.org/tba_files/TSC_WCP/davidsonjamesopn.wpd JOE W. DILLARD v. TEXTRON AEROSTRUCTURES, a division of AVCO CORPORATION Court:TSC - Workers Comp Panel Attorneys: Frederick W. Hodge and Stephen W. Elliott, Nashville, Tennessee, for the appellant, Textron Aerostructures. William H. Partin, Jr., Lexington, Kentucky, for the appellee, Joe W. Dillard. Judge: BYERS First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated 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 the plaintiff sustained a 75 percent permanent partial vocational disability to the body as a whole. The defendant says the record does not support the finding that the plaintiff experienced a permanent anatomical change or a permanent aggravation of his pre-existing condition as a result of an incident on October 18, 1995, and January 2, 1996. The defendant also says the award, if any, should be limited to two and one-half times the medical impairment rating. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/dillardjoeopn.wpd MICHELLE ESTES v. TOSHIBA AMERICA CONSUMER PRODUCTS, INC. and TRAVELERS INSURANCE CO. Court:TSC - Workers Comp Panel Attorneys: Terry L. Hill, Nashville, Tennessee for the appellants, Toshiba America Consumer Products, Inc. and Travelers Insurance Co. Frank Lannom and B. Keith Williams, Lebanon, Tennessee for the appellee, Michelle Estes. Judge: WEATHERFORD First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The defendants, Toshiba America Consumer Products, Inc. and Travelers Insurance Co. appeal the judgment of the Criminal Court of Wilson County, where the trial court found: (1) the plaintiff, Mrs. Michelle Estes, had sustained a five percent (5%) permanent partial disability to the body as a whole due to her work-related injuries; (2) Mrs. Estes had a twelve and one-half percent (12_ %) vocational disability and was limited to a recovery of two and one-half (2 _) times her impairment rating pursuant to Tennessee Code Annotated S 50-6-241(a)(1); and (3) defendants liable for payment of $1,286.00 for chiropractic treatment rendered to Mrs. Estes by Dr. Frank C. Etlinger, D.C.. The defendants submit that the trial court erred in determining that Mrs. Estes is vocationally impaired as a result of her work-related injury and in determining that the defendants were liable for payment for the unauthorized treatment of Dr. Etlinger. For the reasons discussed in this opinion we find that the judgment of the trial court should be reversed and the cause dismissed. http://www.tba.org/tba_files/TSC_WCP/estesmichelle.wpd CARL WAYNE GRIFFIN V. CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE AND TRAVELERS PROPERTY CASUALTY Court:TSC - Workers Comp Panel Attorneys: Frederick W. Hodge, Nashville, Tennessee, for the appellant, Consolidated Freightways Corporation of Delaware and Travelers Property Casualty Hugh Green, Lebanon, Tennessee, for the appellee, Carl Wayne Griffin Judge: RUSSELL First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated Section 50- 6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The sole issue raised on appeal is whether the trial court's award of sixty percent permanent partial disability to each lower extremity is excessive. After a complete review of the entire record, the briefs of the parties, and the applicable law, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/griffincarlopn.wpd LOEWS VANDERBILT PLAZA HOTEL v. STEPHANIE KEATON SIMON Court:TSC - Workers Comp Panel Attorneys: R. Stephen Doughty, Nashville, Tennessee for the appellant, Stephanie Keaton Simon. David T. Hooper, Brentwood, Tennessee for the appellee, Loews Vanderbilt Plaza Hotel. Judge: CATALANO 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 to the Supreme Court of findings of fact and conclusions of law. The defendant employee, Stephanie Keaton Simon, raises two issues, arguing that the trial judge erred in (1) failing, in the face of reasonable doubt regarding causation, to grant all inferences to Simon, and (2) finding that Simon's injury did not arise in the course of her employment. The Panel concludes that the evidence does not preponderate against the finding that Simon's injury arose outside the course of her employment. Furthermore, we do not find error in the trial court's asserted failure to resolve all reasonable doubt in Simon's favor regarding causation. Therefore, we affirm the judgment of the Chancery Court for Davidson County. http://www.tba.org/tba_files/TSC_WCP/loewsopn.wpd RICHARD DAN MOOREHEAD v. RYDER INTEGRATED LOGISTICS, INC. Court:TSC - Workers Comp Panel Attorneys: Daniel C. Todd, Nashville, Tennessee for the appellant, Ryder Integrated Logistics, Inc. Steve C. Norris, Nashville, Tennessee for the appellee, Richard Dan Moorehead Judge: WEATHERFORD First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated S 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The defendant, Ryder Integrated Logistics, Inc., appeals the judgment of the Circuit Court of Davidson County, where the trial court allowed reconsideration of the plaintiff's industrial disability under Tennessee Code Annotated S 50-6-241(a)(2) and awarded a sixty percent (60%) disability to the body as a whole with a credit for earlier payments made pursuant to the original settlement order between the parties filed in the Chancery Court of Davidson County. The defendant submits that the trial court erred: (1) by allowing the plaintiff a reconsideration of his earlier award when he had received in excess of the two and one-half (2 _) cap upon advice of former counsel; (2) by awarding additional disability benefits when the employee failed to establish disability to the extent of thirty- two and one-half (32.5%) percent he had already received; and (3) by awarding disability benefits of five (5) times the impairment rating without making specific findings of fact required by Tennessee Code Annotated S 50-6-241(c). Under the recent ruling of the Tennessee Supreme Court in Freeman v. Marco Transportation Co., 27 S.W.3d 909 (Tenn. 2000), in which the Court held that a request for reconsideration brought pursuant to Tennessee Code Annotated S 50-6-241(a)(2) must be filed in the same court that exercised jurisdiction over the original workers' compensation claim, we do not reach the issues raised by the defendant and find that the judgment of the trial court should be reversed and the cause dismissed without prejudice. Under the savings statute, the plaintiff can refile his request for reconsideration in the Chancery Court of Davidson County within one year of the date of judgment that is the final deposition in this case. http://www.tba.org/tba_files/TSC_WCP/mooreheadrichopn.wpd RICKY SHORT V. DIETZ MOBILE HOME TRANSPORT, et al. Court:TSC - Workers Comp Panel Attorneys: Blakeley D. Matthews, Nashville, Tennessee, for the appellants, Dietz Motor Home Transport and ITT Hartford Insurance Company Jerry Lee Burgess, Cookeville, Tennessee, for the appellee, Ricky Short Judge: RUSSELL First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated Section 50- 6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The Appellants, Dietz Mobile Home Transport (hereinafter called the "Employer") and ITT Hartford Insurance Company (hereinafter the "Carrier") contest the amount of the trial court's award of permanent partial disability benefits on three grounds: (1) that the trial judge established and relied upon an anatomical impairment that was not a rating given by any of the three doctors who testified and that the impairment rating was too high under all of the facts in the case; (2) that the trial judge erroneously found that Ricky Short (hereinafter the "Claimant") did not have a meaningful return to work and therefore erroneously failed to cap the award at two and a half times the anatomical rating; and (3) that the trial judge's award of sixty percent permanent partial disability to the body as a whole was excessive. After a complete review of the entire record, the briefs of the parties, and the applicable law, we affirm the judgment of the trial court on all of the issues raised. http://www.tba.org/tba_files/TSC_WCP/shortrickyopn.wpd TIMOTHY WATSON SIPE v. AQUATECH, INC. AND TRAVELERS INSURANCE COMPANIES Court:TSC - Workers Comp Panel Attorneys: Richard E. Spicer, Nashville Tennessee, for the appellant, Aquatech, Inc. and the Travelers Insurance Companies Donald Dickerson and Margaret Noland, Cookeville, Tennessee, for the appellee, Timothy Watson Sipe Judge: RUSSELL First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated Section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The Appellant appeals from the amount of the award of permanent partial disability benefits. After a complete review of the entire record, the briefs of the parties, and the applicable law, we affirm the award made by the trial court. http://www.tba.org/tba_files/TSC_WCP/sipetimopn.wpd JACK DENNIS BIGGS v. FARM CREDIT SERVICES OF MID-AMERICA Court:TCA Attorneys: J. Michael Ivey, Parsons, Tennessee, for the appellant, Farm Credit Services of Mid-America. B. David Sweeney, Memphis, Tennessee, for the appellee, Jack Dennis Biggs. Judge: FARMER First Paragraph: In this boundary line dispute, the trial court was presented with conflicting testimony from two surveyors as to the proper boundary lines of a two and one-half acre tract. After reviewing the evidence presented, the trial court determined that Mr. Biggs' surveyor's plat controlled. We affirm. http://www.tba.org/tba_files/TCA/biggsjackd.wpd IN THE MATTER OF: KRISTEN LYNN BRIDGES, a minor, MARK ALLAN BRIDGES v. CARLA LYNN KING Court:TCA Attorneys: Gail W. Horner, Germantown, For Appellant, Carla King Lynda F. Teems, Memphis, For Appellee, Mark Allan Bridges Judge: CRAWFORD First Paragraph: Paternity of minor child was established by a juvenile court consent order entered November 26, 1991, and custody of the child was awarded to Mother. In January, 2000, Father filed a petition to change custody on the basis of change of circumstances and the best interest of the child which was granted by the juvenile court referee. The referee's findings and recommendations were confirmed and made the decree of the court on May 25, 2000. Subsequently, on Mother's petition, an evidentiary hearing was held before the juvenile judge, and on July 6, 2000, after the evidentiary hearing, an order was entered reconfirming the referee's ruling of May 25, 2000. Mother has appealed. We reverse. http://www.tba.org/tba_files/TCA/bridgeskri.wpd MUSSON THEATRICAL, INC., et al. v. FEDERAL EXPRESS CORPORATION Court:TCA Attorneys: Cornish F. Hitchcock, Herbert E. Milstein, Lisa M. Mezzetti of Washington, D.C. Alan R. Marizon, Coeur D'Alene, ID Michael R. Marshall, Memphis David J. Guin, Birmingham, AL For Appellants, Musson Theatrical, Inc., and Modernage Photoservice, Inc. R. Jeffery Kelsey and Dwayne S. Byrd, Memphis, For Appellee, Federal Express Corporation Judge: CRAWFORD First Paragraph: Plaintiffs, as shippers, sued defendant, FedEx Corporation, for fraud and misrepresentation because of defendant's practice of charging more for economy two-day service than for one-day service for certain packages. Defendant's motion to dismiss was granted on the basis of preemption by federal law, Airline Deregulation Act, and for failure to state a claim upon which relief can be granted. Plaintiffs appeal. We affirm. http://www.tba.org/tba_files/TCA/mussontheatrical.wpd JEFFREY MONROE WARD v. VALARIE JO WARD Court:TCA Attorneys: David W. Camp, Jackson, Tennessee, for the appellant, Valarie Ward. Shannon A. Jones, Humboldt, Tennessee, for the appellee, Jeffrey Monroe Ward. Judge: FARMER First Paragraph: This appeal arises from a change of child custody action. Mother was awarded custody of Child pursuant to a marital dissolution agreement. Thereafter, Mother had sexual relations with a minor. This relationship led to an assault on minor by a third party in the presence of Child. This assault revealed the relationship of Mother and minor to the minor's parents. Pursuant to a deal with the minor's parents, Mother was forced to relocate to another state. When Father discovered the circumstances surrounding this relationship, he petitioned for a change of custody on the basis that Mother had exposed Child to criminal activity. In addition, Father cited Mother's refusal to grant him visitation and charged that she was improperly caring for Child. The trial court found a material change of circumstances requiring a comparison of the fitness of the parents. The court found Father more fit and granted a change of custody. 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