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TODAY'S OPINIONS: Tuesday, September 20, 2005
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.

00 - TN Supreme Court
03 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
01 - TN Court of Appeals
02 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

TERRY BROWN V. ACE PROPERTY AND CASUALTY INSURANCECOMPANY AND WILLIAM BONNELL COMPANY, INC.

Court: TWCA

Attorneys:

David J. Deming, Manier & Herod, Nashville, TN, for the appellant, Bonnell.

William Joseph Butler and Frank D. Farrar, Farrar, Holliman & Butler, Lafayette, TN, for the appellee, Terry Brown

Judge: Daniel

This case is before the Court upon the entire record, including the order of referral to theSpecial Workersā Compensation Panel, in compliance with Tenn. Code Ann. ¤ 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. Terry Brown sustained awork-related left knee injury on November 4, 2000, when he slipped on a plastic bag and fell on a concrete floor, landing primarily on his left knee. This incident occurred within the scope andcourse of his employment and was observed by his supervisor. Mr. Brown reported his injury and sought medical care from Dr. Bowdoin Smith with the approval of his employer. Dr. Smithadministered non-surgical treatment for pain and recommended that Mr. Brown receive an MRI scan and returned him to work. The treating physicianās recommendation of an MRI was notcarried out and he made no impairment rating. Thereafter, a doctor preforming an independent medical evaluation assigned a 5% impairment to Mr. Brownās left lower extremity. A secondindependent medical evaluation assigned a 1% impairment to the left lower extremity for this same injury. Unfortunately for Mr. Brown, on June 7, 2001, he sustained work-related injuriesto both of his arms. Mr. Brown filed a complaint for workersā compensation benefits on June 18, 2001 for all these injuries which was ultimately amended and later settled his claims related toboth arm injuries. This settlement order retained as the only issue for ultimate decision, Mr. Brownās claim for left lower extremity injury. The trial court, after considering the medical andlay evidence, awarded Mr. Brown 45% permanent partial disability to his left lower extremity and the benefits associated therewith. The employer has appealed this decision asserting that thisaward is excessive and takes into account subsequent injuries to the arms. Therefore, this appeal is limited to whether the trial courtās award was excessive. After carefully considering therecord, we find that although the award of the trial court is generous, we affirm the trial courtās determination.

http://www.tba.org/tba_files/TSC_WCP/2005/brownt92005.pdf


DONALD E. SMITH V. FLEEMANāS TRANSPORT, INC. ANDTENNESSEE SECOND INJURY FUND

Court: TWCA

Attorneys:

Kenneth M. Switzer, Ruth, Howard, Tate & Sowell, Nashville, TN, for the appellant, FleemanāsTransport.

Ben Boston, Boston, Holt & Sockwell, PLLC, Lawrenceburg, TN, for the appellee, Donald E.Smith.

Richard M. Murrell, Assistant Attorney General, Nashville, TN, for appellee, Tennessee SecondInjury Fund.

Judge: Daniel

This case is before the Court upon the entire record, including the order of referral to theSpecial Workersā Compensation Panel, in compliance with Tenn. Code Ann. ¤ 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. Donald E. Smith hadsuffered a number of injuries prior to and after his employment with Fleemanās Transport, Inc., but none of these incidents resulted in a disability impairment rating or job restrictions. OnNovember 9, 2000, Mr. Smith suffered a work-related accident which caused him to be permanently and totally disabled. The trial court determined that Mr. Smith reached maximummedical improvement from his injuries on October 23, 2003, and based on the courtās assessments of prior work injuries, apportioned the award of workersā compensation for theNovember 9, 2000 injury to both the employer and the State Second Injury Fund. Fleemanās appeal contends that the trial court erred in assigning the date of maximum medical improvementpast the date of the employeeās actual maximum recovery. The Second Injury Fund appeal contends that the trial court erred in assigning it any liability because the employer failed toestablish actual knowledge of a prior disability. We find that the proof fails to preponderate against the judgment of the trial court on the date of maximum medical improvement and affirmthis portion of the trial courtās decision. We also find that Fleemanās Transport, Inc. did not establish actual knowledge of disability required for assigning liability to the Second InjuryFund. Consequently, we reverse the trial courtās apportionment of liability for this work-related injury and modify that determination and assign all responsibility and liability for this work-related injury to Fleemanās Transport, Inc.

http://www.tba.org/tba_files/TSC_WCP/2005/smithd92005.pdf


DIANNA GAIL THOMPSON V. TRAVELERS INDEMNITY CO., CHARTEROAKFIRE INSURANCE CO., AND TOSHIBA AMERICAN CONSUMER PRODUCTS, INC.

Court: TWCA

Attorneys:

Terry L. Hill, Manier & Herod, Nashville, TN, for the appellant, Toshiba American ConsumerProducts, Inc.

William Joseph Butler and Frank D. Farrar, Farrar, Holliman & Butler, Lafayette, TN, for theappellee, Dianna Gail Thompson

Judge: Daniel

This case is before the court upon the entire record including the Order of Referral to theSpecial Workersā Compensation Panel, in compliance with Tenn. Code Ann. ¤ 50-6-225(e)(3) for a hearing and reporting of findings of fact and conclusions of law. Dianna Gail Thompsonsuffered a work-related injury to her back and neck as a result of her attempt to move a wooden pallet during the course and scope of her employment as a relief operator. Ms. Thompsonpromptly reported her injury to her supervisor and sought medical care. The treating physician concluded that Ms. Thompson had a strained back and found no permanent impairment. Ms.Thompson thereafter sought other physicians who treated her condition. Thereafter a doctor performing an independent medical evaluation, assigned a 5% impairment to the body as a wholefor her back injury. The trial court, in determining whether the employeeās injury was permanent, considered this conflicting medical testimony and after evaluating that medicaltestimony, awarded Ms. Thompson a 12.5% permanent impairment to the body as a whole and the benefits associated therewith. The employer in this appeal contends that the trial court erredin accrediting the independent medical evaluation over that of the treating physicianās evaluation of Ms. Thompsonās injury. The employer also contends that the trial court erred when it orderedthe employer to pay 6.4 weeks of temporary total disability based on records submitted after the proof had closed. Therefore, this appeal is limited to whether the trial courtās award ofpermanent partial disability benefits was excessive and whether the award of 6.4 weeks of temporary total disability benefits was based on sufficient proof. After carefully considering therecord, we affirm the trial courtās determination of 12.5% permanent partial disability and reverse the trial courtās award of 6.4 weeks of temporary total disability benefits, finding that thetrial court impermissibly reopened proof and accepted inadequate evidence for a finding of temporary total disability award. We, therefore, affirm in part and reverse in part the trial courtāsdetermination.

http://www.tba.org/tba_files/TSC_WCP/2005/thompsond92005.pdf


ADA TRAVIS v. BLAISE FERRARACCIO ET AL.

Court: TCA

Attorneys:

David Randolph Smith and Edmund J. Schmidt, III, Nashville, Tennessee, for the appellant, AdaTravis.

Clisby Hall Barrow, Nashville, Tennessee, and for the appellees, Blaise Ferraraccio, Thomas L.Ely, and Premier Medical Group, P.C.

Judge: KOCH

This appeal involves the medical care a now deceased patient received after he severely injuredhimself in an accident at home. The patient and his wife filed a medical malpractice action in the Circuit Court for Montgomery County against the emergency room physician, the staffphysician, and the neurologist who treated him immediately after the accident. Two of the physicians and their employer filed a motion for summary judgment supported by the twophysiciansā affidavits that the care they rendered the patient was consistent with the applicable standard of care. After the patient died from a heart attack unrelated to this litigation, thepatientās wife opposed the summary judgment motion with depositions from two out-of-state physician experts and an affidavit from one of them concluding that the conduct of the twodefendant physicians violated the standard of care and had caused their patient to suffer permanent quadriplegia. The trial court concluded that the testimony of the wifeās experts wasinadmissible under the locality rule and granted the summary judgment motion. The court thereafter denied the wifeās motion to alter or amend which was accompanied by affidavits fromboth of her experts and certified the order as final pursuant to Tenn. R. Civ. P. 54.02. The patientās wife has appealed. We have concluded that the trial court erred by excluding one of thewifeās expert witnesses. Accordingly, we vacate the summary judgment.

http://www.tba.org/tba_files/TCA/2005/travisa92005.pdf


DICKEY L. COTTON v. DAVID MILLS, WARDEN
WITH DISSENTING OPINION

Court: TCCA

Attorneys:

Dickey Cotton, Pro se, West Tennessee Security Prison, Henning, Tennessee.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General;and Elizabeth T. Rice, District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Dickey L. Cotton, appeals the circuit courtās summary dismissal of his Pro sepetition for writ of habeas corpus. Following our review, we reverse the circuit courtās dismissal of the habeas corpus petition and remand for further proceedings consistent with this opinion.

http://www.tba.org/tba_files/TCCA/2005/cottond92005.pdf

DISSENTING OPINION
http://www.tba.org/tba_files/TCCA/2005/cottond_dis92005.pdf


STATE OF TENNESSEE v. DONNIE GLENN THOMPSON

Court: TCCA

Attorneys:

Mitchell Tollison, Jackson, Tennessee, for the appellant, Donnie Glenn Thompson.

Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General;Jerry Woodall, District Attorney General; and Jim Thompson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Donnie Glenn Thompson, was indicted for one count of stalking his former wife,Kimberly McClinsey. The Defendant subsequently submitted an application for pretrial diversion on this charge, see Tenn. Code Ann. ¤ 40-15-105. The district attorney general deniedthe Defendantās request for pretrial diversion. The Defendant sought review by the trial court, and the trial court found no abuse of discretion by the district attorney general. The Defendantnow appeals from the trial courtās ruling. Finding that the district attorney general abused his discretion in analyzing the Defendantās application for pretrial diversion, we reverse thejudgment of the trial court and remand this matter to the district attorney general for further consideration.

http://www.tba.org/tba_files/TCCA/2005/thompsond92005.pdf


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