June 13, 2001 Volume 7 — Number 107 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 07 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel 01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court 02 New Opinion(s) from the Tennessee Court of Appeals 05 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. Howard H. Vogel Knoxville, Tennessee Editor-in-Chief, TBALink NANCY BYRD v. FRESHI AIR SYSTEMS, INC. (Formerly RITTENHOUSE, INC.), et al. Court:TSC - Workers Comp Panel Attorneys: Weldon E. Patterson, Knoxville, Tennessee, for the appellants, Freshi Air Systems, Inc. (Formerly Rittenhouse, Inc.) and Travelers Insurance Company. Norbert J. Slovis, Knoxville, Tennessee, for the appellee, Nancy Byrd. 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 permanent psychological or mental impairment as a result of a confrontation between her and a supervisor of the defendant. The trial judge found the plaintiff sustained a fifty percent permanent partial disability to the body as a whole as a result of the confrontation. The defendant says the evidence preponderates against the finding. We reverse the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/byrd.wpd ANNETTE L. HANNA, et al. v. FEDERATED INSURANCE COMPANY Court:TSC - Workers Comp Panel Attorneys: D. Brett Burrow and Delicia R. Bryant, Nashville, Tennessee, attorneys for the appellant, Federated Insurance Company. Mark A. Rassas and Julia P. North, Clarksville, Tennessee, for the appellees, Annette L. Hanna, widow of the decedent, Darren D. Hanna, and as Guardian for the minor children, Brett Hanna and Marian Hanna, and as Administratrix of the Estate of Darren D. Hanna. 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's husband was killed in the course and scope of his employment and ordered the amount to which his dependants were entitled should be paid in a lump sum. The court further ordered the money to be paid into the court and that the Clerk and Master invest the funds and pay the interest earned thereon to the widow for the benefit fo the deceased's minor children. The defendant says the death benefits cannot be paid in a lump sum and further says, even if lump sum payments is permissible, the plaintiff has failed to show she can manage the money. Further, the defendant says the trial court erroneously failed to commute the award to its present value. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/hannaopn.wpd BRUCE HARDIN v. TRAVELERS INDEMNITY CO. OF ILLINOIS Court:TSC - Workers Comp Panel Attorneys: Mary Peterson, Memphis, Tennessee, for the appellant, Travelers Indemnity Co. of Illinois. Ricky Boren, Jackson, Tennessee, for the appellee, Bruce Hardin. Judge: MALOAN First Paragraph: This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court pursuant to 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, Travelers Indemnity Co. of Illinois (Travelers) appeals that part of the trial court's judgment which ordered Travelers to pay to the plaintiff, Bruce Hardin (Hardin) and his attorney, $28,652.23 the total of Hardin's medical expenses and required Hardin's attorney to satisfy Blue Cross and Blue Shield's subrogation lien. For the reasons stated in this opinion, we reverse the judgment of the trial court requiring the payment of the total medical expenses and remand for a determination of the amount of medical expenses paid by Hardin. http://www.tba.org/tba_files/TSC_WCP/hardinbruce.wpd HAROLD LIFORD v. AFG INDUSTRIES, INC., et al. Court:TSC - Workers Comp Panel Attorneys: Richard M. Currie, Jr., of Kingsport, Tennessee, for the Appellants, AFG Industries, Inc. and Insurance Company of the State of Pennsylvania. David N. Wedekind and Kristi M. Davis of Knoxville, Tennessee, for Appellee, Harold Liford. Judge: THAYER 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 employer and insurance company have appealed from an award of permanent total disability insisting the evidence preponderates against the trial court's finding the employee's leg condition was causally related to his work injury. The employee contends the award of disability should have been determined to be of a permanent partial nature so that he would qualify for benefits under Tenn. Code Ann. S 50-6-242. Judgment of the trial court is affirmed. http://www.tba.org/tba_files/TSC_WCP/lifordh.wpd MARY E. MILLER, v. NISSAN MOTOR MANUFACTURING CORPORATION , USA, and ROYAL INSURANCE OF AMERICA Court:TSC - Workers Comp Panel Attorneys: Scott Daniel, Murfreesboro, Tennessee for the appellant, Mary E. Miller Larry G. Trail and Patrick J. McHale, Murfreesboro, Tennessee for the appellee, Nissan Motor Manufacturing Corporation, USA, and Royal Insurance of America 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 plaintiff, Mary E. Miller, appeals the judgment of the Chancery Court of Tennessee for the 16th Judicial District at Murfreesboro, where the trial court found: (1) that Ms. Miller sustained an injury by accident arising out of and in the course and scope of her employment and awarded twenty percent (20%) permanent vocational or industrial disability to the right lower extremity; (2) that the testimony of Ms. Miller's expert witness on reflex sympathetic dystrophy (RSD) and fibromyalgia did not meet the criteria for acceptance of scientific testimony in McDaniel v. CSX Transportation Inc., 955 S.W.2d 257 (Tenn.1997), and therefore excluded his testimony; (3) that her condition of fibromyalgia and resulting psychiatric condition were not work-related and as such were not compensable; (4) that Ms. Miller was entitled to permanent medical care and treatment only for the injury to her right leg arising out of this work-related accident but not for fibromyalgia or any other conditions. Ms. Miller also raises some other procedural and evidentiary issues that will be addressed herein. For the reasons stated in this opinion, we affirm the judgment of the trial court. http://www.tba.org/tba_files/TSC_WCP/millermary.wpd ARTHUR RAY WHITE v. MAYTAG CLEVELAND COOKING PRODUCTS, et al. Court:TSC - Workers Comp Panel Attorneys: Paul G. Summers, Attorney General and Reporter, and E. Blaine Sprouse, Assistant Attorney General, of Nashville, Tennessee, for the Appellant, State Second Injury Fund. Denny E. Mobbs, of Cleveland, Tennessee, for Appellee, Maytag Cleveland Cooking Products. Bert Bates, of Cleveland, Tennessee, for Appellee, Arthur Ray White. Judge: THAYER 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 Second Injury Fund has appealed an award of total disability where the employer was ordered to pay 20 percent of the award and the Second Injury Fund was to pay the remaining 80 percent. Judgment of the trial court is affirmed. http://www.tba.org/tba_files/TSC_WCP/whitear.wpd M.S. CARRIERS, INC. v. ROBERT WOOD Court:TSC - Workers Comp Panel Attorneys: Joseph H. Crabtree, Jr., Memphis, Tennessee, for the Petitioner/Appellant, M.S. Carriers, Inc. Steve Taylor, Memphis, Tennessee, for the Respondent/Appellee, Robert Wood. Judge: LAFFERTY First Paragraph: This is an appeal by M.S. Carriers, Inc. of a judgment entered by the trial court in favor of a former Employee/Respondent, Robert Wood. Wood was injured in a truck accident in the state of Maryland on June 25, 1996. The trial court found that Wood, as a result of said injury, had sustained a vocational disability resulting in permanent impairment and disability in the amount of 80 percent to the body as a whole; the Respondent is entitled to temporary disability benefits from December 4, 1996, to July 22, 1998; and certain medical expenses. The petitioner/appellant, Carriers, presents four appellate issues: (1) Whether the trial court erred in awarding permanent partial disability benefits to the Respondent/Appellee?; (2) Whether the trial court erred in awarding unpaid medical expenses?; (3) Whether the trial court erred in awarding additional temporary total disability benefits?; and (4) Whether the assessment of discretionary costs was improper? From our review of the entire record, the trial court's judgment is affirmed. http://www.tba.org/tba_files/TSC_WCP/woodr.wpd SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_0611.wpd LINDA O'MARY v. PROTECH BUILDERS, INC. Court:TCA Attorneys: Dan Kidd, Knoxville, Tennessee, for the appellant, Linda O'Mary. Roger D. Hyman, Powell, Tennessee, for the appellee, Protech Builders, Inc. Judge: SUSANO First Paragraph: The plaintiff, Linda O'Mary, brought this action against the defendant, Protech Builders, Inc., seeking damages for the defendant's alleged faulty construction of an addition to the plaintiff's home. Before trial, the parties entered into a settlement agreement, under the terms of which the defendant agreed to perform certain repairs, including "replac[ing]" any wood in the back wall of the addition showing signs of water damage, and to pay the plaintiff $2,000 in attorney's fees. When the defendant refused to remove several water-damaged studs from the back wall, the plaintiff filed a motion seeking, inter alia, to set the case for a full trial on the merits. The trial court found that the plaintiff was unreasonable in demanding that the water-damaged studs be removed. The court below concluded that the defendant's efforts to perform the repairs, along with its payment of $2,000 to the plaintiff, operated as an accord and satisfaction. The trial court denied the plaintiff's motion and dismissed her complaint. We reverse and remand for further proceedings. http://www.tba.org/tba_files/TCA/omaryl.wpd JANET CAROL SCARBROUGH v. EDD SHERROD SCARBROUGH Court:TCA Attorneys: James H. Bradberry, Dresden, for Appellant L. L. Harrell, Jr., Trenton, for Appellee Judge: HIGHERS First Paragraph: This appeal involves issues stemming from the parties' divorce. The trial court terminated Husband's obligation to pay rehabilitative alimony. In addition, the trial court valued Husband's life estate in certain real property at $200,000.00, and the court awarded Wife $100,000.00. Both parties appeal the decision of the trial court. For the following reasons, we affirm. http://www.tba.org/tba_files/TCA/scarbroughjanet.wpd RODERICK D. COBB v. STATE OF TENNESSEE Court:TCCA Attorneys: Brett B. Stein, Memphis, Tennessee, for the appellant, Roderick D. Cobb. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; and Elaine Sanders, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: LAFFERTY First Paragraph: The issue raised in this appeal is whether the trial court properly denied the Appellant/Petitioner's post-conviction petition? After a review of the record in this cause, the briefs of the parties and applicable law, we affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/cobbrd.wpd STATE OF TENNESSEE v. THOMAS R. JOHNSON Court:TCCA Attorneys: Robert R. Ross, II, Memphis, Tennessee, for the appellant, Thomas R. Johnson. Paul G. Summers, Attorney General and Reporter; Laura E. McMullen, Assistant Attorney General; and Lee Coffee, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: LAFFERTY First Paragraph: The issue on direct appeal is whether the trial court erred in not sentencing the Defendant under the Tennessee Community Correction Act. After a review of the entire record on appeal, the briefs of the parties and applicable law, we affirm the trial court's judgment. http://www.tba.org/tba_files/TCCA/johnsont.wpd DANNY RAY LACY v. STATE OF TENNESSEE Court:TCCA Attorneys: Mark A. Mesler, Memphis, Tennessee, for the appellant, Danny Ray Lacy. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Alfred Lynn Earls, Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: The petitioner appeals the post-conviction court's denial of his petition for post-conviction relief. After review, we hold that the record supports the post-conviction court's finding that trial counsel was not ineffective in failing to obtain the 911 tape; was not ineffective in preparing a defense; was not ineffective for failing to introduce fingernail samples taken from the petitioner; and was not ineffective for failing to adequately develop the victim's mother as a suspect. http://www.tba.org/tba_files/TCCA/lacydr.wpd STATE OF TENNESSEE v. JERRY MAXWELL Court:TCCA Attorneys: J. Brook Lathram, Memphis, Tennessee, and Todd A. Rose, Paris, Tennessee, for the appellant, Jerry Maxwell. Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; Alfred L. Earls and Kevin J. Youngberg, Assistant District Attorneys General Pro Tem, for the appellee, State of Tennessee. Judge: RILEY First Paragraph: Defendant, the attorney for the Dyer Industrial Development Board, was convicted by a Gibson County jury of theft over $60,000 and theft over $1,000. On appeal, he contends the evidence was insufficient to establish guilt. We affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/maxwellj.wpd CHARLES EDWARD TAYLOR v. STATE OF TENNESSEE Court:TCCA Attorneys: Nathan J. Dearing, III, Dyersburg, Tennessee, for the appellant, Charles Edward Taylor. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee. Judge: GLENN First Paragraph: The petitioner appeals the post-conviction court's dismissal of his petition for post-conviction relief. Following his jury conviction of aggravated robbery, the petitioner filed a petition for post- conviction relief, alleging, among other things, that he received ineffective assistance of counsel at trial. At the conclusion of an evidentiary hearing, the post-conviction court dismissed the petition, finding that the petitioner failed to meet his burden of showing ineffective assistance of trial counsel. After a careful review, we affirm the post-conviction court's dismissal of the petition. http://www.tba.org/tba_files/TCCA/taylorce.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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