Opinion Flash

September 3, 2004
Volume 10 — Number 171

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.

This Issue (IN THIS ORDER):
00 New Opinion(s) from the Tennessee Supreme Court
04 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
02 New Opinion(s) from the Tennessee Court of Appeals
01 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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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


Jimmy Darryl Ingle v. Nissan North America Inc., and Royal and
SunAlliance Insurance Co.

Court:TSC - Workers Comp Panel

Attorneys:                          

D. Russell Thomas and Herbert M. Schaltegger, Murfreesboro, TN, for
the appellant, Jimmy Darryl Ingle.

Van French and Larry G. Trail, Trail & Trail, Murfreesboro, TN, for
the appellees Nissan North America Inc. and Royal and SunAlliance.

Judge: TURNBULL

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 of
findings of fact and conclusions of law.   Plaintiff contends the
Chancellor erred in denying his benefits under the Workers'
Compensation Act when the only medical evidence presented after his
final work at Nissan demonstrated permanency of injury.  The
chancellor properly found that the plaintiff has not suffered a
permanent anatomical injury and therefore no permanent partial
impairment under the Tennessee Worker's Compensation Act.  Therefore,
the plaintiff is not entitled to any further benefits for vocational
disability.  We affirm the judgment of the trial court.

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

SHEILA McALPIN v. THYSSEN KRUPP ELEVATOR MFG., INC.

Court:TSC - Workers Comp Panel

Attorneys:                          

Gregory D. Jordan and Geoffrey A. Lindley, Jackson, Tennessee, for the
appellant, Thyssen Krupp Elevator Manufacturing, Inc.

Art D. Wells, Jackson, Tennessee, for the appellee, Sheila McAlpin.

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 the trial court's award of permanent
partial disability benefits based on 45 percent to both arms is
excessive.  As discussed below, the panel has concluded the judgment
should be affirmed.

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

SAMUEL F. SANCHEZ v. SATURN CORP.

Court:TSC - Workers Comp Panel

Attorneys:                          

Joseph K. Dugman, Richard Ashe House, and A. Allen Smith, III, for the
appellant, Samuel F. Sanchez.

Clifford Wilson, for the appellee, Saturn Corporation.

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).  The employee suffered a biceps tendon rupture in the
course and scope of his employment.  While performing arthroscopic
surgery to confirm the existence of a rotator cuff tear, the treating
physician performed a resection of the employee's distal clavicle.  
The employee contends that the trial judge erred in failing to
consider any impairment for this resection in the calculation of the
employee's vocational disability and therefore rendered an inadequate
award.  The Panel finds that medical testimony refutes any causal
connection between the work-related injury and the clavicle resection.
 The Panel also concludes that the employee has failed to meet his
burden of showing that the resection was reasonably necessary to treat
the work-related injury.  We affirm the judgment of the trial court.

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

BETTY JO SISSOM V. STATE OF TENNESSEE DEPARTMENT OF LABOR WORKERS'
COMPENSATION DIVISION SECOND INJURY FUND

Court:TSC - Workers Comp Panel

Attorneys:                          

William J. Butler, Lafayette, Tennessee, for the appellant, Betty Jo
Sissom.

Dianne Stamey Dycus, Nashville, Tennessee, for the appellee, Second
Injury Fund.

Judge: TURNBULL

First Paragraph:

This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann.
_ 50-6- 225(e)(3) for hearing and reporting to the Supreme Court of
findings of fact and conclusions of law.  The employee in this
reconsideration case sustained a work- related back injury and
previously sustained other work-related and nonwork- related injuries.
 Although she initially settled for a permanent partial disability
award as compensation for her recent back injury and returned to work,
she was later discharged due to that back injury.  She argues that the
trial court erred in not raising her prior permanent partial
disability award to an award of permanent total disability.  A
reconsideration award is limited to 6 times the medical impairment
rating due to the subject injury under Tenn. Code Ann. __ 50-6-
241(a)(2) and 50-6-241(b), and the trial court's decision within that
maximum is supported by the evidence.  We affirm the judgment of the
trial court.

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

IN RE: THE ESTATE OF J. D. DAVIS, DECEASED 

Court:TCA

Attorneys:                          

Overton Thompson, III, Nashville, Tennessee, for the appellant,
Dorothy L. Davis.

Thomas O. Helton and Sheri A. Fox, Chattanooga, Tennessee, for the
appellees, J. Douglas Davis and Julie Ann Davis Griffin.

Judge: FARMER

First Paragraph:

The probate court awarded summary judgment to Defendants/Appellees
upon determining that, under Florida law, the antenuptial agreement
entered into by Plaintiff/Appellant and Deceased was valid and
enforceable.  On appeal, Plaintiff/Appellant argues that the agreement
is  not enforceable as a violation of Tennessee public policy and by
reason of duress.  We reverse the award of summary judgment and remand
for further proceedings.

http://www.tba.org/tba_files/TCA/davisjdd.wpd

GARY KENT GILLUM, SR.,  v. LAUREN DAVIS GILLUM McDONALD

Court:TCA

Attorneys:                          

Tim T. Ishii, Nashville, Tennessee, for the appellant, Gary Kent
Gillum, Sr.

Robert T. Jackson, Gary D. Copas,  Nashville, Tennessee and Bryce C.
Ruth, Jr., White House, Tennessee, for the appellee, Lauren Davis
Gillum McDonald.

Judge: CLEMENT

First Paragraph:

Under Marital Dissolution Agreement Mother and Father "temporarily
agreed" to alternate physical custody of child on a week-to-week
basis.  Five months later Mother filed a petition for change of
custody.  The trial court awarded physical custody to Mother during
the school year and to Father during the summer.  Father appeals
arguing that the trial court erred (1) by excluding evidence of
Mother's conduct before the divorce and (2) by failing to state the
reasons and facts on which it based the custody award.  We reverse and
remand, finding that the trial court erred by excluding evidence of
conduct prior to the divorce and by not stating the reasons and facts
on which it based its custody decision as required by Tenn. Code Ann.
S36-6-101(a)(2)(B)(I).

http://www.tba.org/tba_files/TCA/gillumgaryk.wpd

STATE OF TENNESSEE v. CALVIN GRISSETTE

Court:TCCA

Attorneys:                          

Robert L. Marlow, Shelbyville, Tennessee, for the appellant, Calvin
Grissette.

Paul G. Summers, Attorney General and Reporter; Helena Walton
Yarbrough, Assistant Attorney General; Victor S. Johnson III, District
Attorney General; Amy Eisenbeck and Pamela Anderson, Assistant
District Attorneys General, for the appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

A Davidson County jury convicted the Defendant, Calvin Grissette, of
second degree murder and attempted second degree murder.  On appeal,
the Defendant contends that the trial court erred when it refused to
instruct the jury on self-defense.  We affirm the judgments of the
trial court.

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

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