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Today's Opinions: January 26, 2005
Volume 11 — Number 016
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 New Opinion(s) from the Tennessee Supreme Court
05 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
03 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

TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi.

Here's how you can obtain full-text version. We recommend you download the Opinions to your computer and then open them from there. • Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. • 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.

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


EVELYN PENNY CORBIN v. NHC HEALTHCARE/MILAN, LLC 

Court:TSC - Workers Comp Panel

Attorneys:                          

Charles H. Barnett, III, Beth Belew and Sara E. Barnett, Jackson,
Tennessee, for the appellant, NHC Healthcare/Milan, LLC.

Peter J. Dauster, Jackson, Tennessee, for the appellee, Evelyn Penny
Corbin

Judge: TURNBULL

First Paragraph:

This workers' compensation appeal has been referred to this panel in
accordance with Tenn. Code Ann. S 50-6-225(e)(3) for hearing and
reporting of findings of fact and conclusions of law. The employer
insists the award of 15% whole body disability is against the
preponderance of the evidence since the treating physician found no
impairment. We conclude that the evidence does not preponderate
against the award and affirm the judgment of the trial court.

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

BRIAN ENGEBRETSON v. ALLIED WASTE INDUSTRIES OF TENNESSEE, INC., a/k/a
BFI WASTE SYSTEMS OF NORTH AMERICA, INC., et al.

Court:TSC - Workers Comp Panel

Attorneys:                          

Richard L. Rickard, Germantown, Tennessee, for the appellant, Brian J.
Engebretson.

Ronald L. Harper and Alicia Y. Cox, Memphis, Tennessee, for the
defendants-appellees, Allied Waste Industries of Tennessee, Inc. and
American Home Assurance Company

Judge: TURNBULL

First Paragraph:

This workers' compensation appeal has been referred to this 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. Employee appeals the trial court's finding of no permanent
disability as being against the preponderance of the evidence and
asserts error in the admission of medical evidence due to leading
questions. We find the trial court did not commit harmful error in
overruling objections to leading questions propounded to the medical
expert. We further find that the finding of no permanent disability is
against the preponderance of the evidence and fix the employee's
permanent disability at 30% to the left leg.

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

ROBERT FOSTER v. MORROW TRUCKING, INC., et al. 

Court:TSC - Workers Comp Panel

Attorneys:                          

Ricky L. Boren, Jackson, Tennessee, for the plaintiff/appellee, Robert
Foster.

Dale A. Tipps and Sara O. Thomas, Nashville, Tennessee for the
defendanst/appellants, Morrow Trucking, Inc. and Logistics Personnel
Corporation.

Paul G. Summers, Attorney General and Reporter; Richard M. Murrell,
Assistant Attorney General, for defendant-appellee, Second Injury
Fund, State of Tennessee.

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 to the
Supreme Court of findings of fact and conclusions of law. This case
was previously before the Panel in Foster v. Morrow Trucking, et al,
No. W2002-0041-WC-R3-CV (Foster I). In that appeal, the Panel remanded
the case to the trial court for specific findings of fact regarding
the percentage of disability that would have resulted from employee's
November, 1999 injury without consideration of his pre-existing
diabetic neuropathy. Upon remand the trial court fixed the permanent
partial disability resulting from the November, 1999 work related
injury at 50% to the body as a whole without any consideration of his
pre-existing disease. As discussed below, the Panel concludes that the
evidence does not preponderate against that finding and, accordingly,
affirms the judgment of the trial court.

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

RONNIE HAMILTON v. AMERICAN TISSUE INCORPORATED d/b/a AMERICAN TISSUE
MILLS OF TENNESSEE, LLC., ET AL.

Court:TSC - Workers Comp Panel

Attorneys:                          

Steve Taylor, Memphis, Tennessee, for the appellant, Ronnie Hamilton

John R. Cannon, Jr., Memphis, Tennessee, Kimberly-Clark Corporation

Alex C. Elder, Memphis, Tennessee, for the appellee, Shepard Tissue,
Inc.

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 plaintiff/employee insists the trial court erred in
disregarding the testimony of Dr. Jay Segarra, the plaintiff's medical
expert and in making a conditional award of only 10 percent to the
body as a whole.  The employers contend the trial court erred in
admitting into evidence the opinion testimony of Dr. Segarra because
Dr. Segarra is not licensed in Tennessee and because the doctor
committed a crime by providing medical service to the plaintiff in
Tennessee.  As discussed below, the panel has concluded the trial
court committed no reversible error and that the evidence fails to
preponderate against the findings of the trial court.

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

JEFFREY ALLEN NEWMAN v. MARVIN WINDOWS OF TENNESSEE, INC.

Court:TSC - Workers Comp Panel

Attorneys:                          

J. Arthur Crews, II, Waldrop & Hall, Jackson, Tennessee, for the
appellant, Marvin Windows of Tennessee, Inc.

Jay E. DeGroot, Law Office of Jeffrey A. Garrety, Jackson, Tennessee,
for the appellee, Jeffrey Allen Newman

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 disability
benefits based on a percentage of disability to the hand is excessive
because there was no evidence of any unusual or extraordinary effect
on the hand.  As discussed below, the panel has concluded the evidence
fails to preponderate against the findings of the trial court.

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

FRENCH R. BOLEN v. SIGNAGE SOLUTIONS, LLC, ET AL.

Court:TCA

Attorneys:                          

Edward L. Summers, Knoxville, Tennessee, for the Appellant, French R.
Bolen

Patty K. Wheeler and Judith A. Deprisco, Knoxville, Tennessee, for the
Appellees, Signage Solutions, LLC; Trisect Engineering & Consulting
Corp., and E & S Management, Inc.

Judge: LEE

First Paragraph:

The issues presented in this appeal are: whether the trial court
properly ruled that the employer had good cause to terminate the
employee; whether the trial court properly ruled that the employer was
not bound by a written employment agreement with the employee through
the year 2003; and whether the trial court properly ruled that the
employee was not entitled to a bonus for the year 2002. We hold that
the trial court's rulings were proper and so affirm the judgment of
the trial court.

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

SUSAN HUTCHESON v. KRISTI BARTH, INDIVIDUALLY AND IN HER CAPACITY AS
ADMINISTRATOR OF THE ESTATE OF RAYMOND WESLEY BARTH

Court:TCA

Attorneys:                          

Ricky A.W. Curtis, Knoxville, Tennessee, for the Appellant.

Thomas R. Ramsey, III, Knoxville, Tennessee, for the Appellee.

Judge: LEE

First Paragraph:

The threshold issue presented in this appeal is whether the Plaintiff
timely filed her notice of appeal so as to give this Court
jurisdiction to hear this case. The trial court entered its order
granting the Defendant's motion for summary judgment on January 15,
2004. This order adjudicated all the claims of the parties. On
February 25, 2004, the Defendant filed a motion for contempt alleging
non-performance of the order by the Plaintiff. On March 19, 2004, an
agreed order awarding the Defendant pre-judgment interest was entered.
The Defendant had not sought pre-judgment interest in her
counter-complaint or in any subsequent pleadings. The Plaintiff filed
a notice of appeal on April 19, 2004. We find that the notice of
appeal was not filed within thirty days of entry of the judgment
appealed from pursuant to Rule 4 of the Tennessee Rules of Appellate
Procedure. Therefore, we dismiss this appeal because this court does
not have jurisdiction to hear the issues in this appeal.

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

SHERYL LYNN PRICE v. RICHARD THEODORE BRIGHT

Court:TCA

Attorneys:                          

Ricky A.W. Curtis, Knoxville, Tennessee, for the Appellant Sheryl Lynn
Price.

H. Gene Bell, Knoxville, Tennessee, for the Appellee Richard Theodore
Bright.

Judge: SWINEY

First Paragraph:

Richard Theodore Bright ("Father") is the primary residential parent
for his eight year old daughter.  The child's mother is Sheryl Lynn
Price ("Mother").  Father filed a petition seeking permission to
relocate with his daughter to Ohio.  Mother opposed the petition. 
After a trial, the Juvenile Court concluded the parents were not
spending substantially equal amounts of time with the child and the
requirements of Tenn. Code Ann. S 36-6-108(d), therefore, applied. 
The Juvenile Court then concluded Father had a reasonable purpose for
moving to Ohio, such a move would pose no threat of specific and
serious harm to the child, and Father's motive for moving was not
vindictive or intended to defeat or deter Mother's visitation rights. 
Accordingly, the Juvenile Court granted Father's petition seeking
permission to relocate to Ohio.  Mother appeals raising several issues
including the issue of whether the Juvenile Court had subject matter
jurisdiction to hear Father's Petition to Relocate.  We affirm.

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

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