Opinion FlashJune 3, 2002Volume 8 — Number 97 Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.
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Howard H. Vogel CORRECTED VERSION: CORRECTION ON PAGE 1 ROY L. LEAB v. S & H MINING COMPANY Court:TSC Attorneys: Benjamin C. Mullins and Imogene A. King, Knoxville, Tennessee, for the appellant, S & H Mining Company. Bruce D. Fox, Clinton, Tennessee, for the appellee, Roy L. Leab. Judge: BIRCH First Paragraph: In this workers' compensation appeal, the employer raises several issues. Primarily, it contends that the trial court erred in awarding benefits pursuant to Tenn. Code Ann. S 50-6-242 (1999) rather than applying the "multiplier" provision of Tenn. Code Ann. S 50-6-241(b) (1999), which, if applied, would limit the plaintiff's award to six times his medical impairment rating. We hold that the evidence does not preponderate against the trial court's finding. Specifically, we hold that the requirements of Tenn. Code Ann. S 50-6-242(1) are satisfied whenever the employee either cannot read or write on an eighth-grade level or lacks a high school diploma or general equivalency diploma. We reject the contention that both elements must be satisfied to meet the statutory requirements. The employer also contends that the trial court failed to document the clear and convincing evidence supporting an award in excess of the multiplier provision, as required by Peace v. Easy Trucking Co., 38 S.W.3d 526 (Tenn. 2001), and that it abused its discretion in commuting the benefit award to a lump sum because it did not make a finding that a lump sum award would be in the plaintiff's best interest. We hold that the trial court's judgment fails to document specific findings required for the resolution of both these issues, and we remand the cause so these omissions may be remedied. http://www.tba.org/tba_files/TSC/leabr.wpd LARRY PATTERSON v. PREMIER MEDICAL GROUP, P. C., et al. Court:TSC - Workers Comp Panel Attorneys: D. Andrew Saulters, Nashville, Tennessee, for the appellants, Premier Medical Group, P. C., and CNA Insurance Company Stanley A. Davis, Nashville, Tennessee, for the appellee, Larry Patterson 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 appellants contend (1) the trial court erred in awarding disability benefits in light of the appellee's refusal to undergo carpal tunnel release surgery, (2) the trial judge erred in admitting into evidence and considering testimony of a vocational expert called by the appellee, and (3) the trial judge erred in awarding permanent total disability benefits for a scheduled injury. As discussed below, the panel has concluded the award of permanent partial disability benefits should be modified to one based on 100 percent to both arms. http://www.tba.org/tba_files/TSC_WCP/pattersonlarry.wpd SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Court:TSC - Rules http://www.tba.org/tba_files/TSC_Rules/certlist_0603.wpd PAUL IVY v. ALTON HESSON, WARDEN, TONY PARKER, ASSOCIATE WARDEN, ROBERT HENRY, DEPUTY WARDEN, CAPTAIN MOORE, SGT. AARON TITTLE, and CPL. MICHAEL OTTINGER, DISCIPLINARY BOARD CHAIRMAN Court:TCA Attorneys: Paul Ivy, appellant, pro se. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, and Pamela S. Lorch, Nashville, Tennessee, for the appellees, Alton Hesson, Tony Parker, Robert Henry, Captain Moore, Aaron Tittle, and Michael Ottinger. Judge: LILLARD First Paragraph: This is a 42 U.S.C. S 1983 prisoner case. The plaintiff, a state prisoner, brought this S 1983 action in forma pauperis, claiming that his due process rights were violated because he was disciplined in retaliation for filing a letter of complaint to the appropriate authorities. The trial court dismissed the complaint without prejudice, determining that the plaintiff did not submit an affidavit that accurately documented his prior history of litigation as is required under Tennessee Code Annotated S 41-21- 805. The plaintiff now appeals. We reverse, finding that the trial court erred in failing to allow the plaintiff limited discovery to rebut the defendants' evidence that his affidavit was incomplete. http://www.tba.org/tba_files/TCA/ivyp.wpd RICHARD MADKINS v. STATE OF TENNESSEE Court:TCA Attorneys: Richard Madkins, Pro Se. Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Martha A. Campbell, Senior Counsel, for the State of Tennessee. Judge: FARMER First Paragraph: Plaintiff was convicted of especially aggravated robbery and attempted felony murder. The trial court sentenced Plaintiff to two consecutive sentences of sixty years for each count. In an opinion filed on March 22, 1999, the Tennessee Supreme Court reversed Plaintiff's conviction for attempted felony murder, concluding that the offense did not exist in Tennessee. On March 28, 2001, Plaintiff sued the State of Tennessee in the Division of Claims Administration. The State filed a motion to dismiss Plaintiff's action, which the Claims Commission granted. Plaintiff appeals the decision of the Claims Commission. We affirm. http://www.tba.org/tba_files/TCA/madkinsrichard.wpd MELISSA GAY TAYLOR v. TERRY FRANKLIN TAYLOR, JR. Court:TCA Attorneys: Holly D. Bishop, Henderson, Tennessee, for the appellant, Terry Franklin Taylor, Jr. Charles A. Spitzer, Jackson, Tennessee, for the appellee, Melissa Gay Taylor. Judge: FARMER First Paragraph: Husband moved the trial court to set aside a default judgment and permanent parenting plan in this divorce action on the basis that the final decree and permanent parenting plan differed significantly from the relief sought in the complaint and temporary parenting plan filed by Wife. The trial court denied the motion and Husband appeals. We reverse the decision of the trial court insofar as it failed to grant Husband the relief sought. http://www.tba.org/tba_files/TCA/taylormelissagay.wpd STATE OF TENNESSEE v. TERRANCE BURKE Court:TCCA Attorneys: James M. Gulley, Memphis, Tennessee, for the Appellant, Terrance Burke. Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Jennifer Nichols, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: WITT First Paragraph: A Shelby County jury convicted the defendant, Terrance Burke, of aggravated robbery. On appeal, he challenges the sufficiency of the convicting evidence and the trial court's denial of his pretrial motion to suppress the victim's identification of him via a photographic line-up. Discerning no reversible error, we affirm the conviction. http://www.tba.org/tba_files/TCCA/burket2.wpd STATE OF TENNESSEE v. JODY ALAN FERGUSON Court:TCCA Attorneys: Joseph P. Atnip, District Public Defender; William K. Randolph, Assistant Public Defender, Dresden, Tennessee, for the Appellant, Jody Alan Ferguson. Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; John H. Bledsoe, Assistant Attorney General; Thomas A. Thomas, District Attorney General; Kevin McAlpin, Assistant District Attorney General, for the Appellee, State of Tennessee. Judge: HAYES First Paragraph: On November 9, 1999, the Appellant, Jody Alan Ferguson, pled guilty to nine counts of forgery in the Obion County Circuit Court and was sentenced to two years of community corrections after service of thirty days confinement in the county jail. On March 9, 2000, Ferguson pled guilty to four counts of forgery and received an effective sentence of two years in the Tennessee Department of Correction. Ferguson's placement in the community corrections program was revoked and his nine two-year sentences were ordered to be served in the Department of Correction concurrently with his March 9th sentences. On June 21, 2000, Ferguson was granted determinate release by the Department of Correction for the series of two-year sentences imposed on November 9, 1999, and March 9, 2000, and he was returned to supervised probation. On June 26, 2000, Ferguson again pled guilty to two counts of forgery and received concurrent two-year suspended sentences to be served concurrently to all outstanding sentences previously imposed. On August 28, 2001, probation violation warrants were issued against Ferguson. The warrants alleged that Ferguson had violated the following conditions: (1) failed to report to the probation officer; (2) failed to pay supervision fees; (3) failed to pay restitution and court costs; and (4) failed to perform community service work. On November 9, 2001, the trial court revoked Ferguson's probationary status and ordered him to serve the remainder of his two-year sentences in the Tennessee Department of Correction. On appeal, Ferguson does not contest the trial court's finding that he violated the terms of his probation. Rather, Ferguson argues that the trial court abused its discretion by not again placing him on probation or community corrections. After review, we find no error and affirm the judgment of the trial court. http://www.tba.org/tba_files/TCCA/fergusonj.wpd STATE OF TENNESSEE v. MICHAEL DANELLE HARVEY Court:TCCA Attorneys: Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); George Morton Googe, District Public Defender (at trial and on appeal); and Vanessa D. King, Assistant District Public Defender (at trial and on appeal), for the appellant, Michael Danelle Harvey. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Shaun A. Brown. Assistant District Attorney General, for the appellee, State of Tennessee. Judge: WILLIAMS First Paragraph: Defendant was convicted for one count of statutory rape and one count of criminal exposure to HIV. Defendant appeals alleging (1) that there was insufficient evidence to support his convictions and (2) the imposition of consecutive sentences was excessive. We affirm the trial court judgment. http://www.tba.org/tba_files/TCCA/harveymd.wpd STEVE V. WALKER v. STATE OF TENNESSEE Court:TCCA Attorneys: Steve V. Walker, Tiptonville, Tennessee, pro se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Patricia C. Kussmann, Assistant Attorney General; for the Appellee, State of Tennessee. Judge: WEDEMEYER First Paragraph: The Petitioner filed a petition for writ of habeas corpus, alleging that his sentence was illegal because: (1) he was improperly sentenced as a persistent offender; (2) his sentence was improperly enhanced because he did not receive the State's notice of intent to seek enhanced punishment; (3) the record of his prior criminal convictions relied upon to sentence him was inaccurate; and (4) his counsel was ineffective. The trial court denied the Petitioner's request for habeas corpus relief, and the Petitioner appealed. Because the Petitioner has failed to allege grounds that would warrant habeas corpus relief, the judgment of the trial court is affirmed. http://www.tba.org/tba_files/TCCA/walkersv.wpd PLEASE FORWARD THIS E-MAIL! GET A FULL-TEXT COPY OF AN OPINION! JOIN THE TENNESSEE BAR ASSOCIATION! SUBSCRIBE TO OPINION FLASH! UNSUBSCRIBE TO OPINION FLASH? ... SURELY NOT! But if you must, visit the TBALink web site at: http://www.tba.org/op-flash.mgi Home • Contact Us • PageFinder • What's New • Help |
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