Court Reviews Whether Insurance Company’s Motion to Dismiss was Properly Granted in an Automobile Accident Case

SHEILA BROWN v. RICO ROLAND (Tenn. Ct. App. September 24, 2010)

The matters at issue pertain to the rights and responsibilities of the parties under the underinsured motorist provisions of Plaintiff's automobile insurance. Plaintiff, who was involved in a vehicular accident with another motorist, commenced this personal injury action to recover an amount "under $25,000." The only named defendant is the tortfeasor, however, State Farm is an unnamed party. This is due to the fact that Plaintiff served timely and proper notice on State Farm of the commencement of this action and that she was asserting an underinsured coverage claim pursuant to Tenn. Code Ann. section 56-7-1206.

Plaintiff subsequently entered into a settlement agreement with the tortfeasor for the tortfeasor's policy limits of $25,000, at which time she properly served notice on State Farm of the proposed settlement and her willingness to enter into binding arbitration with State Farm to settle her claim for underinsured motorist benefits.

Thereafter, State Farm filed a motion to dismiss the underinsured claim against it claiming Plaintiff was made whole when she agreed to a settlement with the tortfeasor in an amount in excess of her ad damnum and therefore there was no claim to arbitrate. The court granted the motion to dismiss and Plaintiff appealed.

We have determined the trial court did not err in granting State Farm's motion to dismiss the claim against it because Plaintiff sought to recover a judgment in an amount under $25,000 from the tortfeasor and/or State Farm, and Plaintiff settled her claim against the tortfeasor for an amount in excess of the ad damnum. Accordingly, we affirm the dismissal of State Farm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/browns_092410.pdf

Court reviews various issues regarding disclosing the amount of damages in a medical malpractice case.

AMANDA ELLIOTT v. R. MICHAEL COBB (Tenn. September 23, 2010)

The issue presented in this interlocutory appeal is whether a plaintiff in a medical malpractice action is prohibited from arguing or suggesting to the jury any monetary amounts for non-economic damages. We hold that the language of Tennessee Code Annotated section 29-26- 117 (2000) prohibits the plaintiff from disclosing the amount of damages requested in the plaintiff's pleading, but does not preclude the plaintiff from arguing or suggesting monetary amounts for non-economic damages to jurors at trial. The judgment of the trial court is reversed, and this case is remanded for further proceedings.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/elliota_092310.pdf

KOCH concurring
http://www.tba2.org/tba_files/TSC/2010/elliota_CON_092310.pdf

TWCA Reviews the Apportionment of an Award for Permanent Partial Disability

SCHERING PLOUGH HEALTHCARE PRODUCTS, INC. v. JEROME D. PLUMLEY (TWCA September 23, 2010)

Employee was injured when a forklift ran over his foot. This injury also implicated Employee's ankle and lower leg. The issues presented to the trial court were the extent of permanent partial disability benefits and whether the award should be apportioned to the foot or to the leg. The trial court found that the award should be apportioned to the leg and awarded 9% permanent partial disability to the leg.

Employee has appealed, contending that the award should have been apportioned to the foot and thus not be subject to the "cap" contained in Tennessee Code Annotated section 50-6-241(d)(1)(A) (2008). We affirm the judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/scheringplough_092310.pdf

TWCA Reviews whether Trial Court Properly Found Permament Total Injury of an Employee’s Previous Injury

LINDA PRINCINSKY v. PREMIER MANUFACTURING SUPPORT PREMIER MANUFACTURING SUPPORT SERVICES ET AL. (TWCA September 23, 2010)

In this workers' compensation action, the employee, Linda Princinsky, sought reconsideration for a compensable injury that she sustained in 2002. Following the injury, she was able to return to work for her pre-injury employer. Her workers' compensation claim was settled for two and one-half times the anatomical impairment in accordance with Tennessee Code Annotated section 50-6-241(a).

In 2005, she sustained another work-related injury, and was unable to return to her job. She entered into a court-approved settlement of that claim based upon 40.5% permanent partial disability to the body as a whole. She then sought reconsideration, pursuant to Tennessee Code Annotated section 50-6-241(a)(2), of the settlement of her 2002 injury.

The trial court found that she was permanently and totally disabled as a result of that injury and awarded benefits accordingly. Employer and the Second Injury Fund have appealed. We affirm the trial court's finding that Ms. Princinsky was rendered permanently and totally disabled by her 2002 injury, but conclude that the trial court erred in failing to offset from its award 272 weeks of benefits previously paid by the employer for the 2002 and 2005 injuries. We, therefore, modify the award and remand the case to the trial court for the entry of an appropriate judgment consistent with this opinion.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/princinskyl_092310.pdf

Court Reviews Insurance Coverage in a Case Involving an Uninsured Motorist

FLOYD L. FLETCHER, ET AL. v. ASHLEY R. WHITE, ET AL. (Tenn. Ct. App. September 22, 2010)

Mr. Fletcher, who was injured in an automobile accident involving an uninsured motorist, sued the insurance company after it denied uninsured motorist benefits under his towing policy. Insurance company filed a motion for summary judgment claiming that the towing policy did not provide uninsured motorist coverage for Mr. Fletcher's accident because it involved a non-covered auto. After a hearing on the motion, the trial court granted summary judgment to the insurance company. Mr. and Mrs. Fletcher appeal. We affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/fletcherf_092210.pdf

Court Reviews Liability and a Directed Verdict Ruling in a Property Insurance Case

ENGLISH MOUNTAIN RETREAT, LLC, ET AL. v. SUSANNE CRUSENBERRY-GREGG, ET AL. (Tenn. Ct. App. September 21, 2010)

Plaintiffs purchased property insurance from defendants. The insured building was destroyed by a fire and plaintiffs received the full coverage limit. Nonetheless, plaintiffs sued defendants claiming that the building was under-insured and that they relied on the defendants' negligent advice. A jury trial occurred and after the close of plaintiffs' proof, defendants moved for a directed verdict on all issues. The trial court granted defendants' motion and dismissed plaintiffs' complaint. Plaintiffs appeal. We find that a directed verdict is inappropriate because plaintiffs presented sufficient facts for a jury to decide liability. Therefore, we reverse the trial court's order and remand for a full trial.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/englishmountain_092110.pdf

Court Reviews Evidence Used in an Automobile Accident Case

ROBIN R. RIPPY AND DARRELL RIPPY v. CINTAS CORPORATION SERVICES, INC., ET AL. (Tenn. Ct. App. September 20, 2010)

Plaintiff motorist filed suit against defendant motorist and her employer, seeking damages she sustained in a motor vehicle accident in which defendant motorist rear-ended her vehicle. Defendants appeal a jury award asserting there is no material evidence to support the award. Finding the verdict of the jury to be supported by the evidence, we affirm the judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/rippyr_092010.pdf

Supreme Court Reviews a Wrongful Death Claim in a Case Involving the Death of a Child

CANDACE MULLINS v. STATE OF TENNESSEE (Tenn. September 17, 2010)

The issue presented in this appeal is whether the Tennessee Claims Commission had subject matter jurisdiction to hear a claim against the State of Tennessee arising from the death of a young child who had been removed from his mother's home and placed in the custody of the mother's aunt by order of the juvenile court.

The child and his two brothers were removed from their mother's care because of her use of cocaine. At the mother's request and after an investigation, the Department of Children's Services recommended to the juvenile court that custody of the children be awarded to the mother's aunt. Less than a month after the court entered the order of custody, the mother reported concerns about the children's well-being to the Department. A case worker investigated the aunt's home and found no basis to remove the children. Ten days later, one of the children, a five-year-old boy, died from extensive injuries allegedly inflicted by the aunt's nineteen-year-old daughter who lived in the home.

The child's mother filed a wrongful death claim against the State alleging negligence on the part of the Department. The Claims Commissioner denied the claim, finding that the Claims Commission did not have subject matter jurisdiction to hear the claim pursuant to Tennessee Code Annotated section 9-8-307(a)(1)(E) (1999 & Supp. 2009) and that, in any event, the mother had failed to prove negligence by the Department. We hold that the Claims Commission did not have subject matter jurisdiction to hear the claim because the child was not in the care, custody, and control of the State.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/mullinsc_091710.pdf

Court Reviews Summary Judgment Ruling in an Insurance Case Involving Misrepresentation

CECILIA OWENSBY, ET AL. v. STATE FARM FIRE AND CASUALTY COMPANY, ET AL. (Tenn. Ct. App. September 15, 2010)

Cecilia and Charles Owensby had a homeowners insurance policy issued by State Farm Fire and Casualty Company ("State Farm"). After their house burned down, the Owensbys filed a claim pursuant to the policy. State Farm eventually denied the claim, asserting that Cecilia Owensby had made four material misrepresentations when applying for the insurance and that each of these misrepresentations increased State Farm's risk of loss. The plaintiffs asserted that any inaccurate information contained on the application was the fault of the insurance agent who filled out the application on Cecilia Owensby's behalf. The plaintiffs sued both State Farm and Darius Miller ("Miller"), the insurance agent. State Farm and Miller filed a motion for summary judgment, which the Trial Court granted. The plaintiffs appeal the grant of summary judgment. We modify the judgment of the Trial Court and, as modified, affirm the grant of summary judgment to the defendants.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/owensbyc_091510.pdf

TWCA Determines which Employer has Liability for Employee’s Injuries

GAIL TUTEN v. JOHNSON CONTROLS, INC., ET AL. (TWCA August 25, 2010)

Employee developed carpal tunnel syndrome while employed as a factory worker by Johnson Controls, Inc. ("JCI"). After employee gave notice of her injury and received some treatment, Manufacturers Industrial Group ("MIG") bought the factory and became her employer. She had surgery on both arms and returned to work, but was then permanently laid off.

Employee brought an action against both JCI and MIG for workers' compensation benefits due to injuries sustained to her right and left hands and wrists. JCI and MIG each argued that the other should be liable for her workers' compensation benefits.

The trial court found that MIG was liable and awarded 48% permanent partial disability to both arms. MIG appealed. It contends that the trial court erred by assigning liability to it and by adopting the impairment rating of a physician chosen through the Medical Impairment Registry. MIG further argues that the award was excessive. We affirm the judgment of the trial court.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/tuteng_082510.pdf

TWCA Reviews Whether Trial Court Properly Apportioned Liability in a Case Involving Permanently-Disabling Injuries

ROY T. McGAHA v. COCKE COUNTY HIGHWAY DEPARTMENT ET AL. (TWCA August 25, 2010)

In this workers' compensation action, the employee, Roy McGaha, sustained a work-related back injury in June 2004, while employed by the Cocke County Highway Department. He was able to return to work, and his claim for benefits was settled within the one and one-half times impairment cap contained in Tennessee Code Annotated section 50-6-241(a). He alleged that he sustained a new compensable injury to his back in November 2007. The county denied the claim, asserting that Mr. McGaha did not sustain a new injury, but that his condition was the result of his earlier injury, and his remedy was, therefore, limited to reconsideration of his previous settlement.

The trial court held that a new injury occurred in 2007 and that Mr. McGaha was permanently and totally disabled as a result of it. The court assigned 76% of the liability for the award to the county and 24% to the Second Injury Fund. The county has appealed, asserting that the trial court erred by finding that Mr. McGaha sustained a new injury and by finding that he was permanently and totally disabled. The Fund asserts, on appeal, that the trial court used an incorrect method to apportion liability.

We affirm the award of benefits. We conclude, however, that the trial court did not use the correct method of apportioning liability between the Fund and the county. That portion of the order is vacated, and the case is remanded for further proceedings with regard to that issue.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/mcgahar_082510.pdf

TWCA Reviews Whether Employee Timely Filed His Request for Assistance

JOE LYNN HUGHES v. ROBERT BRENT d/b/a APARTMENT MAINTENANCE SPECIALISTS, ET AL. (TWCA August 25, 2010)

In this workers' compensation action, the trial court granted the employer's motion for summary judgment on the grounds that the employee's claim was barred by the statute of limitations, Tennessee Code Annotated section 50-6-203, because the employee had not filed a request for benefit review conference within one year of the date of injury. The employee, Joe Lynn Hughes, has appealed, contending that the statute was tolled by his timely filing of a request for assistance. We agree, reverse the grant of summary judgment, and remand the case to the trial court.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/hughesj_082510.pdf

TWCA Reviews Whether the Trial Court Properly Found Partial Permanent Disability and Awarded Benefits

BUILDERS MUTUAL INSURANCE COMPANY v. ROBERT W. DAUGHTREY (TWCA August 25, 2010)

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law.

The employee alleged that he sustained a compensable injury to his left arm. His employer denied the claim, contending that the injury was not caused by the employment, and also that the employee had failed to provide notice of his injury as required by the workers' compensation statute.

The trial court found that the injury was work-related, and awarded 60% permanent partial disability ("PPD") to the left arm. On appeal, the employer argues that the evidence preponderates against the trial court's findings on these issues, and that the trial court erred by failing to apply the missing witness rule as to the potential testimony of the treating physicians. We find no error, and affirm the judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/daughtrey_082510.pdf

Court Reviews a Motion to Set Aside a Judgment Approving a Settlement in a Workers’ Compensation Case

PATRICIA HENDERSON v. SAIA, INC. ET AL. (Tenn. Ct. App. August 24, 2010)

This workers' compensation appeal was initially referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law in accordance with Tennessee Code Annotated section 50-6-225(e)(3). After oral argument was conducted before the Panel, but before the Panel filed its opinion, the case was transferred to the full Court in order to consider a request under Tennessee Rule of Civil Procedure 60.02 to set aside a judgment approving a settlement. The trial court found no basis for setting aside the settlement under Rule 60.02. Neither do we. The judgment of the trial court upholding the parties' settlement is affirmed.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/hendersonp_082410.pdf

TWCA Reviews Whether the Trial Court had Jurisdiction to Compel Employer to Authorize a Medical Procedure

RICKY L. MAYES v. PEEBLES, INC. (TWCA August 23, 2010)

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law.

Ricky Mayes ("Employee") sustained a compensable injury to his spine. His claim against Peebles, Inc. ("Employer") was settled in accordance with the workers' compensation statute. His authorized treating physician subsequently recommended a surgical procedure. Employer's medical utilization review provider declined to approve the procedure.

After an initial administrative appeal was denied, Employee filed a motion in the trial court, seeking to compel Employer to authorize the procedure. The trial court granted the motion, and awarded attorney's fees to Employee. On appeal, Employer argues that the trial court did not have jurisdiction, because Employee did not exhaust his administrative appeals, and that the trial court erred by awarding attorney's fees. We affirm the judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/mayesr_082310.pdf

Court Reviews an Insurance Policy to Determine Whether it is Liable for Unpaid Medical Expenses Related to Patient’s Pre-Existing Condition

WELLMONT HEALTH SYSTEM v. JOHN QUINTON QUALLS, ET AL. (Tenn. Ct. App. August 20, 2010)

Plaintiff hospital filed a lawsuit against defendant patient for unpaid medical expenses. Defendant patient filed a third party complaint against defendant insurance company alleging that the insurance company was responsible for the unpaid medical expenses pursuant to a health insurance policy. After a bench trial, the trial court concluded that the insurance contract was ambiguous and construed it against the defendant insurance company. Defendant insurance company appeals.

After reviewing the record and the health insurance policy, we conclude that the policy was not ambiguous and the insurance contract specifically excluded coverage of patient's pre-existing condition. Accordingly, we reverse.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/wellmont_082010.pdf

TWCA Reviews Whether Employee Gave Sufficient Notice of his Injuries in His Initial Claim

RICK BOVEE v. HOME DEPOT, USA, INC. (TWCA August 18, 2010)

In this workers' compensation action, employee sought benefits for injuries to his hips, shoulders, and feet. The trial court awarded benefits for injuries to his shoulders and feet but found that he failed to give timely notice of his bilateral hip injuries to his employer and dismissed those claims.

Employee has appealed, contending that the trial court erred in finding that he did not provide timely notice of his hip injuries and that the complaint is barred by the statute of limitations. He requests that temporary disability, medical, and permanent disability benefits be awarded for those claims. Employer argues that the trial court erred in its calculation of the amount to be set off for social security retirement benefits.

We conclude that the employee gave sufficient notice of his hip injuries to satisfy the requirements of the workers' compensation statute. However, we find that those claims are barred by the applicable statute of Limitations. The judgment is affirmed in all other respects.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/boveer_081810.pdf

TWCA Reviews Whether Treatment Ordered Post-Judgment was Related to Employee’s Work Injury

JOHN FREEMAN v. GENERAL MOTORS CORPORATION (TWCA August 18, 2010)

The trial court granted the employee's post-judgment motion to compel his employer to provide certain medical treatment. The employer has appealed, contending that the trial court erred by finding that the proposed treatment was related to the work injury. We affirm the judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/freemanj_081810.pdf

TWCA Reviews Whether Employee Met The Burden of Proof to Satisfy her Claim

BRENDA M. McGHEE v. HOLLAND GROUP OF TENNESSEE, INC. (TWCA August 18, 2010)

The Employee filed a workers' compensation claim against her Employer for back pain resulting from the aggravation and advancement of her degenerative disc disease, which she claimed had occurred from her injury while working on a brake line assembly. The trial court found that the Employee had not carried her burden of proof, and the Employee appealed.

Because the evidence does not preponderate against the findings of fact made by the trial court, the Special Workers' Compensation Appeals Panel, sitting in accordance with Tennessee Code Annotated section 50-6-225(e)(3) and Tennessee Supreme Court Rule 51, affirms the judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/mcgheeb_081810.pdf

TWCA Reviews Whether an Independent Contractor is Entitled to Workers’ Compensation Benefits

JOSEPH SCOTT RICHARDSON v. JAMES BROWN CONTRACTING, INC. d/b/a JAMES BROWN TRUCKING COMPANY ET AL (TWCA August 18, 2010)

The owner and operator of a tractor-trailer filed a workers' compensation claim against a common carrier for injuries that he incurred while attempting to verify a load to transport to another location. The trial court ruled that the owner/operator, while an independent contractor, was entitled to workers' compensation benefits by virtue of a written contract between the parties extending coverage, as permitted by statute. The trial court reserved judgment on the award and permitted an interlocutory appeal.

The Supreme Court granted the appeal and referred it to the Special Workers' Compensation Appeals Panel pursuant to Tennessee Code Annotated section 50-6-225(e)(3) and Tennessee Supreme Court Rule 51. Because the evidence does not preponderate against the findings of fact made by the trial court, the judgment is affirmed. The cause is remanded to the trial court for the disposition of the remaining issues.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/richardsonj_081810.pdf

Court Reviews Whether Expert Proof is Required to Support a Medical Malpractice Claim Partially Based on Res Ipsa Loquitur

LORRAINE DEUEL, Individually and as Administratrix of the ESTATE OF CLYDE DEUEL, deceased v. THE SURGICAL CLINIC, PLLC and RICHARD J. GEER, M.D. (Tenn. Ct. App. August 17, 2010)

This is a medical malpractice case involving res ipsa loquitur. The defendant physician performed surgery on the plaintiff's husband. Sponges were used in the patient's abdomen during the procedure. Nurses in the operating room counted the sponges used in the surgery. The nurses erred in counting the sponges, and the defendant physician closed the surgical incision with a sponge remaining inside. The retained sponge was later discovered and removed in a second surgery. The plaintiff's husband subsequently died of causes unrelated to the retained sponge.

The widow sued the physician and his employer for medical malpractice, asserting that the doctrine of res ipsa loquitur applied, as well as the common knowledge exception to the requirement of expert medical proof. The physician filed a motion for summary judgment, and the plaintiff filed a cross-motion for summary judgment as to liability.

The defendant physician filed two medical expert affidavits, both of which stated that the defendant physician had complied with the applicable standard of care by relying on the nurses' sponge count. Initially, the plaintiff filed an expert affidavit stating that the defendant physician did not comply with the applicable standard of care, but later filed a notice stating that she intended to proceed to trial with no expert proof to support her medical malpractice claim.

The trial court determined that neither res ipsa loquitur nor the common knowledge exception applied, and granted summary judgment in favor of the defendant physician. The plaintiff now appeals. We reverse the grant of summary judgment in favor of the defendant physician, and affirm the denial of the plaintiff's motion for partial summary judgment. We find that, under both the common knowledge exception and the doctrine of res ipsa loquitur, the plaintiff was not required to submit expert proof to rebut the physician's expert testimony that he was not negligent by relying on the nurses' sponge count. However, application of neither res ipsa loquitur nor the common knowledge exception results in a conclusive presumption of negligence by the defendant physician. Therefore, a fact issue as to the physician's negligence remains for trial.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/deuell_081710.pdf

TWCA Reviews Whether Employee Met the Burden of Proof in Proving that He had Compensable Injuries

OTIS PATRICK v. SAFELITE GLASS CORPORATION, ET AL. (TWCA August 17, 2010)

The employee alleged that he had sustained a compensable injury to his back. His employer denied the claim due to discrepancies between his account of the event that caused the injury and certain medical records. The trial court found that the employee had failed to sustain his burden of proof, and dismissed the complaint. The employee appealed, contending that the evidence preponderates against that finding. We affirm the judgment of the trial court.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/patricko_081710.pdf

TWCA Reviews Whether an Employee was a Traveling Employee for the Purposes of Death Benefits

CAROLYNE PARK-PEGRAM ET AL., v. FINDLEY & PEGRAM COMPANY, INC. (TWCA August 17, 2010)

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. Emory Pegram ("Decedent") was the President of Findley & Pegram Company, Inc. ("Employer"). He died as a result of a motorcycle accident. Approximately ten minutes before the accident, he had made a bank deposit for the business. He thereafter drove past his office and home. Employer had no active projects in the direction Decedent was traveling at the time of the accident. There was, however, a potential future project in that direction. Decedent had not informed any co-workers or employees where he was going or for what purpose. He was carrying business documents, a business cell phone, and a tool.

The trial court concluded that he was a traveling employee at the time of the accident, and awarded workers' compensation death benefits to his widow. The trial court also awarded post-judgment interest for the five-month period between the announcement of the court's decision and entry of the judgment. Employer has appealed. We conclude that Decedent was not a traveling employee, but was acting in the course of his employment at the time of the accident. We further conclude that the workers' compensation statute does not authorize an award of interest prior to entry of the judgment. The judgment is modified to remove the award of post-judgment interest. It is otherwise affirmed.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/park-pegramc_081710.pdf

TWCA Reviews a Motion to Dismiss a Workers’ Compensation Claim

WAYNE MORAN v. FULTON BELLOWS & COMPONENTS, INC. (TWCA August 17, 2010)

Employee alleged that he sustained hearing loss as a result of his work for employer. He filed a civil action 94 days after an impasse was reached at a benefit review conference. The trial court granted employer's motion to dismiss on the basis of the 90-day statute of limitations, Tenn. Code Ann. section 50-6-203(g)(1) (2008). On appeal, employee contends that the report of the benefit review conference was never "filed with the commissioner" of Labor and Workforce Development as required by the statute and that the 90-day limitation period therefore never began to run. We affirm the judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/moranw_0801710.pdf

TWCA Reviews an Award of Permanent Partial Disability

DONNA ISBELL v. JIMMY DEAN FOODS (TWCA August 16, 2010)

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The employee alleged that she sustained a repetitive motion injury to her chest and back. Her employer denied liability. Three doctors testified concerning the issues of causation and permanency. The trial court found that the employee had sustained a compensable injury, and awarded 16% permanent partial disability ("PPD") benefits to the body as a whole.

On appeal, the employer contends that the trial court erred by awarding any benefits. The employee contends that the award is inadequate. We agree with the employee and increase the award to 30% PPD to the body as a whole and otherwise affirm the judgment of the trial court.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/isbelld_081610.pdf

Court Reviews Whether Appellant Proved that her Expert was Familiar with the Standard of Care in a Community Similar to that of the Defendant

TINA JOHNSON, ET AL. v. DAVID J. RICHARDSON, M.D. (Tenn. Ct. App. August 13, 2010)

This is a medical malpractice case. Plaintiff/Appellant appeals from the trial court's disqualification of her expert witness and grant of the Defendant/Appellee's motion for directed verdict. Finding that the Appellant failed to show that her expert was familiar with the standard of care in a community similar to the defendant's community, we affirm the decision of the trial court.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/johnsont_081310.pdf

KIRBY concurring
http://www.tba2.org/tba_files/TCA/2010/johnsont_CON_081310.pdf

TWCA Reviews Whether Employer was Properly Ordered to Provide Employee’s Medications

JOHN CRUMBY, JR. v. RURAL/METRO CORPORATION OF TENNESSEE (TWCA August 11, 2010)

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. In 2001, the trial court found that Employee's coronary artery disease had been advanced by his employment. Medical benefits were awarded in accordance with the workers' compensation law. In 2007, a dispute arose between Employee and Employer as to whether certain medications and tests were related to the work injury. Employee filed a motion to compel Employer to provide the medications under the 2001 judgment. The trial court granted the motion, and ordered Employer to provide all of the medications at issue. On appeal, we conclude that the trial court erred by requiring Employer to provide medications for Employee's diabetes. We otherwise affirm the order.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/crumbyj_081110

Court Reviews Whether A Cause of Action Against an Employer Constitutes Negligence or a Workers’ Compensation Claim

MARY COLEMAN, ET AL. v. ST. THOMAS HOSPITAL (Tenn. Ct. App. August 5, 2010)

Plaintiffs filed suit against their employer, alleging common law negligence and negligent infliction of emotional distress due to their exposure to carbon monoxide in the workplace. The employer filed a motion for summary judgment, contending that Plaintiffs' tort claims were barred by Tennessee's workers' compensation law. The trial court denied the employer's motion for summary judgment, concluding that Plaintiffs' injuries did not "arise out of" their employment. The employer's application for an extraordinary appeal was granted. We reverse and remand for entry of an order granting summary judgment to the employer.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/colemanm_080510.pdf

Sports Bar Settles Suit for Overserving Customer Leading to Fatal Crash

The Atlanta Journal-Constitution reports that The Sports Grill, a Georgia sports bar, has settled a lawsuit against it, known as a dram shop action, for $1 million.  AJC repots that Cuneyt Erturk, was driving home on October 25, 2008 when he was struck and killed by a car driven by William Paul Davis.  The lawsuit filed on behalf of Mr. Erturk's widow claimed that Sports Grill staff members overserved Davis knowing he would drive home.  State Court Judge Toby Prodgers in May sanctioned the bar for destroying more than four hours of videotape that might have proved Ms. Erturk's case. The Judge also found evidence that The Sports Grill destroyed tabs for two customers who were with Davis and the "spill sheet" that recorded complimentary drinks to patrons that night. The Sports Grill denied the allegations in court documents, and the parties reached a settlement on July 15, 2010.

The Adams Law Firm prosecutes dram shop cases on behalf of plaintffs like Ms. Erturk.  As the Erturk case shows, early presrvation of evidence held by a bar or restaurant may be key is proving alleged liability.  Please call us with any questions or concerns you may have about establishments who irresponsibly serve patrons.    

Healthcare Fraud - Reforms May Lead to More Whistleblowers and Lower Costs

We often hear prospective jurors say they are hesitant to find in favor of plaintiffs because it may cause a rise in the cost of goods, services, and especially insurance.  While there are many arguments to the contrary, we cannot, at length, debate the issue during jury selection.  If we could, we would point out that, unlike legitimate tort claims, healthcare billing fraud costs consumers billions of dollars annually.  Fortunately, as Bloomberg reports, healthcare reform laws may make it easier for those aware of such fraud to report it without fear of employer retaliation.

When a worker reports such fraud, they are often referred to as a whistleblower, and the suit which may follow is referred to as a qui tam action.  Qui tam is an action brought by an informer which seeks a penalty for acts such as healthcare billing fraud and provides that the informer may recover some funds for his or her efforts.  The remainder of the fund goes to the state or other institutions which were affected by the fraud.  Such cases deter fraud and recover millions, and sometimes billions, of dollars which go back into the system to defray costs.

Court Reviews Whether the Trial Court’s Refusing to Allow Expert Testimony was Erroneous

JAMES Q. HOLDER, et al., v. WESTGATE RESORTS LTD., a Florida Limited Partnership d/b/a WESTGATE SMOKY MOUNTAIN RESORT AT GATLINBURG

(CORRECTION in the majority opinion (Tenn. Ct. App. July 28, 2010))

Plaintiff sustained personal injuries resulting from a fall on defendant's premises and brought this action for damages, which resulted in a jury verdict in favor of plaintiff for damages against defendant. Defendant appealed, and asserted that the Trial Judge erred when he refused to allow defendant's expert to testify to his conversation with a third party. On appeal, we hold that the Trial Court erred in refusing to allow the proffered testimony, but the error was harmless. We affirm the Judgment of the Trial Court.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/holderj_corr_072810.pdf

SUSANO, concurring in part and dissenting in part
http://www.tba2.org/tba_files/TCA/2010/holderj_CON_072810.pdf

Court Reviews Whether Defendants can use Trial Testimony Transcripts in Closing Arguments

CATHY L. CHAPMAN, ET AL. v. JAMES V. LEWIS, M.D., ET AL. (Tenn. Ct. App. July 28, 2010)

On April 10, 2000, William D. Chapman, II ("the Deceased") was involved in a motor vehicle accident. As a result of his injuries, he was admitted to Holston Valley Hospital and Medical Center in Kingsport where he came under the care of trauma surgeons, the defendants, James V. Lewis, M.D., and George M. Testerman, Jr., M.D., as well as other physicians and medical personnel.

The plaintiff, Cathy L. Chapman, brought this wrongful death action against the defendants based upon her allegation that they were guilty of medical malpractice in the treatment of her husband; she claims that their malpractice caused the death of the Deceased on April 15, 2000. Following eight days of a jury trial in July 2008, counsel for the parties made their closing arguments. During the defense's argument, counsel for the plaintiff objected when counsel for Dr. Testerman projected on a video screen what purported to be the Q. and A. trial testimony of the plaintiff's medical expert, Dr. Philip Witorsch. The trial court overruled the objection and thereafter the jury returned a verdict in favor of both defendants.

Later, the trial court, acting on the plaintiff's motion, reversed itself and held that the defendants failed to lay a proper foundation for the use of the projected testimony. The court also pointed out that the defendants failed to give the plaintiff prior notice of their intention to use portions of the trial transcript in closing argument. As a consequence, the court granted the plaintiff a new trial. The defendants appeal. We reverse the trial court's grant of a new trial and reinstate the court's judgment in favor of the defendants.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/chapmanc_072810.pdf

TWCA Reviews Whether the Trial Court Properly Found that an Employee Sustained a Compensable Mental Injury

TRANSPORT SERVICE, LLC v. DONALD ALLEN (TWCA July 28, 2010)

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law.

The employee alleged a compensable injury to his right shoulder and a compensable mental injury. His employer denied that the alleged mental injury was compensable. The trial court found both injuries to be compensable and awarded 50% permanent partial disability to the body as a whole.

On appeal, the employer contends that the trial court erred by awarding benefits for the mental injury and by finding that the employee did not have a meaningful return to work. The employee contends that the trial court erred by accepting the impairment rating of the Medical Impairment Rating Registry physician and in the trial court's application of the concurrent injury rule. We conclude that the evidence preponderates against the trial court's finding that the employee sustained a compensable mental injury and modify the judgment accordingly.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/transportservice_072810.pdf

TWCA Reviews Whether an Employee Had a Meaningful Return to Work

WENDY BLAIR v. WYNDHAM VACATION OWNERSHIP, INC. (TWCA July 28, 2010)

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. Wendy Blair ("Employee") sustained injuries as a result of a fall which occurred in the course of her work as a sales agent for Wyndham Vacation Ownership ("Employer").

The trial court found that she suffered permanent injuries to her neck and lower back due to the fall and that she had not made a meaningful return to work. The trial court awarded Employee 78% permanent partial disability ("PPD") benefits to the body as a whole. Employer has appealed from that judgment. We conclude that the trial court erred in its finding that Employee did not have a meaningful return to work. Consequently, we modify the judgment to award 19.5% PPD to the body as a whole.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/blairw_072810.pdf

TWCA Reviews Whether Employee’s Condition had been Worsened by Later Employment

VICKY L. BENSON v. OLD REPUBLIC INSURANCE COMPANY, ET AL. (TWCA July 28, 2010)

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. Vicky Benson ("Employee") developed bilateral carpal tunnel syndrome in 2002, as a result of her work for New Gray Cemetery ("Employer"). Her claim was accepted. She had surgery on her right arm in 2004 and returned to work. After her return, she was terminated for reasons not related to her injury. She continued to receive conservative medical treatment from time to time. She found new employment in 2006. In September 2007, her treating physician recommended surgery for her left arm.

Employer denied the claim, contending that her subsequent employer was liable for the condition and its effects. The trial court ruled that Employee's condition had been worsened by her later employment, and dismissed the claim. On appeal, Employee contends that the evidence preponderates against the trial court's finding. We affirm the judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/bensonv_072810.pdf

Court Reviews Issues Involving Physician Interviews in a Medical Malpractice Case

VICKI P. JACOBS, SURVIVING SPOUSE OF HARRIS N. JACOBS, DECEASED; AND FOR THE BENEFIT OF HERSELF AND THE MINOR CHILDREN OF HARRIS N. JACOBS, DECEASED v. NASHVILLE EAR, NOSE & THROAT CLINIC ET AL. (Tenn. Ct. App. July 27, 2010)

This is a medical malpractice case. Vicki P. Jacobs ("the Plaintiff") alleges that the failure of Stephen A. Mitchell, M.D., an otolaryngologist, and K. James Schumacher, M.D., a neuroradiologist, to diagnose cancer in the left sinus of her late husband, Harris N. Jacobs ("the Decedent"), in May 2000 caused his death in November 2001.

The trial court granted all defendants summary judgment. The court held that the Plaintiff, in the face of the defendants' motions for summary judgment, failed to demonstrate a genuine issue of material fact as to the element of causation. The court's ruling was premised, in part, on the court's holding that the affidavit of one of the experts was not timely filed and also because, according to the court, the Plaintiff's experts gave deposition testimony that superseded and canceled out their assertions in affidavits. Plaintiff appeals, challenging the court's grant of summary judgment and an earlier order allowing the defendants to conduct ex parte interviews of treating physicians of the Decedent. We vacate both orders and remand for further proceedings.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/jacobsv_CORR_072710.pdf

Court reviews whether expert testimony should have been admitted in a case involving a fall on Defendant's premises

JAMES Q. HOLDER, et al., v. WESTGATE RESORTS LTD., a Florida Limited Partnership d/b/a WESTGATE SMOKY MOUNTAIN RESORT AT GATLINBURG (Tenn. Ct. App. July 23, 2010)

Plaintiff sustained personal injuries resulting from a fall on defendant's premises and brought this action for damages, which resulted in a jury verdict in favor of plaintiff for damages against defendant. Defendant appealed, and asserted that the Trial Judge erred when he refused to allow defendant's expert to testify to his conversation with a third party. On appeal, we hold that the Trial Court erred in refusing to allow the proffered testimony, but the error was harmless. We affirm the Judgment of the Trial Court.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/holderj_072310.pdf

SUSANO concurring in part and dissenting in part.
http://www.tba2.org/tba_files/TCA/2010/holderj_CON_072310.pdf

Court reviews whether trial court properly denied a motion for a directed verdict in a medical malpractice case

TERESA LYNN STANFIELD, ET AL. v. JOHN NEBLETT, JR., M.D., ET AL. (Tenn. Ct. App. July 23, 2010)

This is a medical malpractice case. The jury returned a verdict, finding that the Appellee/Doctor deviated from the standard of care, but that his deviation was not the legal cause of the injury. Appellant contends that the trial court erred in denying her motion for a directed verdict, erred in ruling on her objections to Appellee's experts and the impeachment of her experts, that she was prejudiced by the language used on the verdict form, and that the trial court abused its discretion in allowing Appellee to make a powerpoint presentation during opening statements and closing arguments. Finding no error, we affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/stanfieldt_072310.pdf

Court reviews the trial court's grant of a summary judgment motion in medical malpractice case

VICKI P. JACOBS, SURVIVING SPOUSE OF HARRIS N. JACOBS, DECEASED; AND FOR THE BENEFIT OF HERSELF AND THE MINOR CHILDREN OF HARRIS N. JACOBS, DECEASED v. NASHVILLE EAR, NOSE & THROAT CLINIC ET AL. (Tenn. Ct. App. July 16, 2010)

This is a medical malpractice case. Vicki P. Jacobs ("the Plaintiff") alleges that the failure of Stephen A. Mitchell, M.D., an otolaryngologist, and K. James Schumacher, M.D., a neuroradiologist, to diagnose cancer in the left sinus of her late husband, Harris N. Jacobs ("the Decedent"), in May 2000 caused his death in November 2001.

The trial court granted all defendants summary judgment. The court held that the Plaintiff, in the face of the defendants' motions for summary judgment, failed to demonstrate a genuine issue of material fact as to the element of causation. The court's ruling was premised, in part, on the court's holding that the affidavit of one of the experts was not timely filed and also because, according to the court, the Plaintiff's experts gave deposition testimony that superseded and canceled out their assertions in affidavits. Plaintiff appeals, challenging the court's grant of summary judgment and an earlier order allowing the defendants to conduct ex parte interviews of treating physicians of the Decedent. We vacate both orders and remand for further proceedings.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/jacobsv_071610.pdf

Court reviews causation in an automobile accident case

GLENDA HAMPTON v. NORTHWEST TENNESSEE HUMAN RESOURCE AGENCY (Tenn. Ct. App July 13, 2010)

This is a personal injury case. The Appellant/Defendant's employee backed a van into a vehicle which the Appellee/Plaintiff was driving. Until the accident, the Plaintiff had not had any problems with her right shoulder. The morning after the accident the Plaintiff had pain and soreness in her shoulder. She was treated by three different orthopedic surgeons and ultimately had arthroscopic right shoulder surgery. The parties stipulated to liability. However, the Defendant disputed causation. A bench trial was held and the trial court found that the accident caused the Plaintiff's shoulder injury which necessitated the shoulder surgery. Defendant appealed from the trial court's judgment. We affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/hamptong_CORR_071510.pdf

Worker's Compensation Panel reviews whether employee's condition was compensable

RUBY E. AUSTIN v. GENLYTE THOMAS GROUP, LLC ET AL. (TWCA July 12, 2010)

Employee alleged that she sustained a compensable injury to her back. Employer referred her to a physician who opined that her condition was not work-related, and her claim was thereafter denied. After trial, the court found that Employee's condition was compensable and awarded 65% permanent partial disability to the body as a whole and temporary total disability benefits. Employer has appealed, contending that the evidence preponderates against the trial court's finding that a compensable injury occurred, or alternatively in ordering payment of temporary total disability benefits. We modify the award of temporary total disability benefits but otherwise affirm the judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/austinr_071210.pdf

Court Reviews Whether the Statute of Limitations Barred Plaintiffs From Bringing a Claim Related to the Contamination of their House after a Flood

VICTORIA DUTTON, ET AL. v. FARMERS GROUP, INC., ET AL. (Tenn. Ct. App. July 12, 2010)

Plaintiffs' home flooded and incurred severe water and mold damage when the hot water tank burst. Plaintiffs began to experience varying illnesses after moving back into the home. Despite Defendants' assurances that the home was safe, three years after moving back into the home, Plaintiffs discovered that their home was contaminated with toxic mold. Thereafter, Plaintiffs filed suit against Defendants alleging various claims. Defendants moved to dismiss the Complaint asserting that the statute of limitations barred the claims. After a hearing, the trial court agreed and dismissed Plaintiffs' Complaint. Plaintiffs then filed a motion to alter or amend the judgment; the trial court denied the motion. Plaintiffs appeal. We reverse.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/duttonv_081210.pdf

SUSANO concurring
http://www.tba2.org/tba_files/TCA/2010/duttonv_CON_081210.pdf

Court reviews whether defendant City had notice of an unsafe road condition in an automobile accident case

JENNIFER BIVINS ET AL. v. CITY OF MURFREESBORO (Tenn. Ct. App. July 12, 2010)

Brandon Bivins died in an automobile accident on South Rutherford Boulevard in Murfreesboro. His mother sued the city, claiming that the road was unsafe or dangerous and that the city had notice of the condition of the road. The trial court held that the city did not have notice of an unsafe or dangerous condition at the spot of the accident. Because the city had notice of prior accidents along that segment of the road and had a consultant's report stating that the road did not meet design guidelines, we reverse the trial court and remand for a determination of whether the road was unsafe or dangerous.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/bivinsj_071210.pdf

Court reviews whether plaintiff failed to establish the standard of cared owed by prison officials

SHIRLEY ANN ATKINSON, ADMINISTRATOR OF THE ESTATE OF ROBERT LEE PATTEE, JR., DECEASED v. STATE OF TENNESSEE (Tenn. Ct. App. July 12, 2010)

This is an appeal from the Tennessee Claims Commission. The claimant/appellant alleged that state employees or their agents negligently caused the death of her fiancé, who committed suicide while incarcerated at the Lois M. DeBerry Special Needs Facility in Nashville, Tennessee. The Commission determined the claimant was not entitled to recover because she failed to produce expert testimony to establish the standards of care by which to judge the conduct of the prison officials and mental health professionals allegedly responsible for the care, custody, and control of the deceased. Because the Commission correctly determined that the claimant is unable to prove a breach of duty without expert evidence to establish the applicable standards of care, we affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/atkinsons_071210.pdf

Court reviews causation in a medical malpractice and battery case

RUFUS R. CLIFFORD, III AND WIFE, CARRIE C. CLIFFORD v. LOYDA TACOGUE, M. D., ST. THOMAS HOSPITAL, AND ST. JUDE MEDICAL, S.C., INC. (Tenn. Ct. App. July 9, 2010)

Plaintiff husband alleged that he suffered an injury in the course of undergoing a cardiac catheterization procedure. Plaintiffs filed suit against the treating physician, alleging medical malpractice, lack of informed consent, and medical battery; against the hospital, alleging medical malpractice based on an actual or apparent agency with the physician; and against the manufacturer of the medical device used in the procedure, alleging that the manufacturer was vicariously liable for medical battery committed by its employee.

The trial court granted summary judgment to the defendants on all claims, holding that plaintiffs failed to establish that the use of the medical device to close the site where the catheter was inserted was the cause of husband's injury. Finding that the defendants negated the element of causation essential to each cause of action, the trial court's judgment is affirmed.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/cliffordr_070910

Workers' Compensation panel reviews the evidence in a case involving neck and back injuries

JACK KELTON v. BRIDGESTONE AMERICAS HOLDING, INC., ET AL. (TWCA July 8, 2010)

In this workers' compensation action, the employee alleged that he sustained compensable injuries to his neck and lower back. His employer asserted that his injuries were the result of pre-existing degenerative conditions, or in the alternative, were worsened by an automobile accident which occurred after the alleged work injuries. The trial court found the neck injury to be compensable, but denied recovery for the alleged lower back injury. It awarded 85% permanent partial disability benefits, temporary total disability benefits, and required the employer to provide medical care for the neck injury. The employer has appealed arguing that the evidence preponderates against the trial court's findings. We affirm the judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/keltonj_070810

Worker's Compensation Panel reviews whether employer is liable for employee's second injury

MONTRAIZE THOMISON v. YATES SERVICES, LLC (TWCA July 8, 2010)

Employee alleged that he sustained two compensable injuries to his left knee. The first injury occurred on December 12, 2004, was accepted as compensable by employer, and resulted in an award of 15% permanent partial disability to the left leg. That award is not contested on appeal. Employee alleged that a second injury occurred on September 26, 2006. Employer denied liability for that injury. The trial court found that Employee sustained a second injury and awarded 30% permanent partial disability to the left leg. On appeal, Employer asserts that the trial court erred by finding that a compensable injury occurred, or in the alternative, that Employee sustained a permanent disability as a result of the injury. We conclude that the record contains no medical evidence of a causal nexus between the second injury and the alleged disability. Accordingly, we reverse the judgment of the trial court and remand the case.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/thomisonm_070810

Worker's Compensation Panel reviews whether employer proved its affirmative defense of employee misrepresentation of physical condition

MARK ALLRED v. BERKLINE, LLC, ET AL. (TWCA July 1, 2010)

The employee sustained gradual injuries to his arms and shoulders as a result of repetitive motion in the course of his employment. His employer denied liability based upon the affirmative defense of misrepresentation of physical condition. Employee had sustained gradual injuries to his left shoulder and arm during a previous job. He was placed under permanent activity restrictions and received a workers' compensation award as a result of those injuries. In applying for employment with appellant, he did not disclose the prior injuries.

The trial court concluded that the employer did not prove the misrepresentation defense. Permanent total disability benefits were awarded. Employer has appealed, contending that the trial court erred by finding that it did not sustain its burden of proof as to the affirmative defense.

Upon review, we conclude that the evidence preponderates against the trial court's findings and that the employee's misrepresentation was willful, was relied upon by the employer and was causally related to his subsequent injuries. Because we find that the employer sustained its burden of proving its affirmative defense, we reverse the awarding of benefits. Finally, we conclude that the employer is not entitled to recover the cost of retaining a consulting physician to view a surgical procedure that did not take place.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2010/allredm_070110.pdf

Court reviews fault in a case involving an automobile accident

REGINALD DENARD USHER, SON OF REGINALD SMITH, DECEASED v. CHARLES BLALOCK & SONS, INC. ET AL. (Tenn. Ct. App. June 30, 2010)

Reginald Smith ("the Decedent") died when the exposed metal edge of a device known as a "Guardrail Energy-Absorbing Terminal" ("the crash cushion") penetrated the window of the cab of his moving overturned tractor-trailer and cut him nearly in half. His son, Reginald Denard Usher ("the plaintiff"), filed this action in the trial court against Charles Blaylock & Sons, Inc. The plaintiff also filed a claim against the State with the Tennessee Claims Commission.

The essence of the claims is that the crash cushion was negligently placed at the end of a series of concrete barriers that served to separate traffic entering on and exiting from the roadway connecting to the temporary end of Interstate 140 in Blount County. The alleged negligence was the failure to install a "transition panel" between the last concrete barrier and the crash cushion. Such a panel is designed to cover the otherwise exposed edge of the crash cushion thereby preventing vehicles from "snagging" the exposed metal edge. Eventually, the claim against the State was joined with the claim against Blaylock.

The case was tried to a jury with the circuit judge sitting as the Claims Commissioner; the jury was utilized by the trial judge in an advisory capacity with regard to the claim against the State. The jury returned a verdict in favor of the plaintiff. The jury found that the plaintiff's total damages were $2,000,000. It apportioned fault 25% to the Decedent, 37.5% to the State, and 37.5% to Blaylock. Acting as the Claims Commissioner, the trial court went against the advice of the jury and dismissed the claim against the State. The court found (1) that the plaintiff failed to carry the burden of proof with respect to the applicable standard of care for installing crash cushions; (2) that the plaintiff failed to prove a breach of duty; and (3) that, in any event, the Decedent was at least 50% at fault for speeding through a construction zone in foggy conditions.

Later, the trial court granted Blalock's motion for judgment notwithstanding the verdict and entered judgment in its favor. The court held (1) that Blalock was not responsible, as a matter of law, for leaving off the transition panel because the State's inspector on the scene "directed" Blalock to leave it off; (2) that the plaintiff failed to carry the burden of proving, by expert testimony, what a reasonably prudent contractor would have done under the circumstances; and (3) again, that the Decedent was at least 50% at fault. The court, acting as 13th juror, conditionally granted Blalock a new trial in the event the judgment in its favor was vacated or reversed. The plaintiff appeals. We affirm the judgment in favor of the State. We vacate the judgment in favor of Blalock and remand for a new trial as to that defendant.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/usherr_063010.pdf

Court reviews whether plaintiff adequately stated a claim for relief

CHARLES D. STECHEBAR V. DEERE & COMPANY & JOHN DOE (Tenn. Ct. App. June 29, 2010)

This case concerns a complaint for review by writ of certiorari and supersedeas. The initial action was a personal injury suit, arising from an automobile accident in which Plaintiff Charles D. Stechebar's vehicle was allegedly hit by a tractor-trailer owned by Defendant Deere and Company ("Deere") and driven by Defendant John Doe, an unidentified employee of Deere.

The personal injury suit was dismissed with prejudice in the general sessions court when the plaintiff failed to appear for the initial trial date. The record reflects that twelve days before the initial trial date, the plaintiff had filed an amended civil summons and obtained a new trial date.

Fifty days after the dismissal, the plaintiff filed an appeal to the circuit court, asserting that he had not been notified of the dismissal in time to file an appeal within the ten-day window required by Tenn. Code Ann. Section 27-5-108(a)(1). The circuit court dismissed the appeal for lack of jurisdiction. The plaintiff then filed the complaint for review by statutory writ of certiorari and supersedeas. The circuit court granted the defendant's motion to dismiss the writ on the ground that the plaintiff failed to state a claim for which review could be granted. We hold that the plaintiff stated a claim for relief under statutory writ of certiorari and supersedeas. The trial court's judgment is reversed and the case remanded to the trial court for further proceedings.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/stechebarc_062910.pdf

Court reviews whether the trial court failed to make an adequate award in a medical malpractice action

JAMES ERWIN v. TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA (Tenn. Ct. App. June 28, 2010)

Plaintiff recovered a judgment in this medical malpractice action, and during the pendency of the case the workers compensation carrier for plaintiff's employer intervened asserting its subrogation interest in any recovery due to its having paid the medical bills plaintiff incurred as a result of his injuries. The Trial Court awarded attorney's fees and expenses to plaintiff's attorney and plaintiff has appealed, arguing that the Trial Court failed to make an adequate award. On appeal, we affirm the Judgment of the Trial Court.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/erwinj_062810.pdf

Court reviews whether plaintiff adequately proved constructive notice in a slip and fall case

CALVIN BENN v. PUBLIC BUILDING AUTHORITY OF KNOX COUNTY, ET AL. (Tenn. Ct. App. June 28, 2010)

Plaintiff slipped off the sidewalk while removing trash during the course and scope of his employment with Knox County. Plaintiff sustained injuries to his hip and shoulder as a result of his fall. He then filed suit pursuant to the Government Tort Liability Act. After a bench trial, the trial court found that Plaintiff failed to prove constructive notice by a preponderance of the evidence and entered a judgment in favor of Defendants. Plaintiff appeals. We affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/bennc_062810.pdf

Worker's Compensation Panel reviews whether employee suffered a compensable injury

MICHAEL HALL v. AM COMP ASSURANCE CORPORATION (TWCA June 28, 2010)

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. Michael Hall ("Employee") alleged that he sustained compensable injuries as a result of repetitive use of his hands and arms in the course of his employment as a butcher for Latham's Meat Company ("Employer"). Employer denied that he had sustained a compensable injury. In the alternative, it alleged that Employee's injuries had been caused by his part-time work for a second employer.

The trial court found that Employee had sustained compensable injuries to his arms and that Employer was liable for workers' compensation benefits arising from those injuries. It awarded 22.5% permanent partial disability ("PPD") to both arms. On appeal, Employer contends that the trial court erred by finding that a compensable injury occurred and by finding that Employee sustained permanent disability as a result. We affirm the judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/hallwc_062810.pdf

Court reviews dismissal of medical malpractice case

SHAWN HOWELL, Individually and as Administrator for the Estate of JESSE FRANKLIN BROWNING, JR. v. CLAIBORNE AND HUGHES HEALTH CENTER (Tenn. Ct. App. June 25, 2010)

This is a medical malpractice action. Appellant originally filed a claim in 2007 in the name of an estate. The original claim was subsequently non-suited. Less than one year later, the claim was then re-filed, also in the name of an estate. With permission of the court, the Appellant later amended the complaint to name the administrator of the estate as the plaintiff.

However, upon the Appellee's motion, the trial court dismissed the complaint finding: (1) the complaint was barred by the statute of limitations as there were no allegations in the complaint which would invoke the savings statute; (2) the complaint failed to state with particularity the specific acts of negligence; and (3) that the Appellant failed to comply with the notice requirements for a medical malpractice action found in Tenn. Code. Ann. section 29-26- 121. Finding that the trial court erred, we reverse the decision of the trial court and remand for further proceedings.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/howells_062510.pdf

TN Supreme Court reviews the applicability of the Government Tort Liability Act

ESTATE OF JOYCE BELL ET AL. v. SHELBY COUNTY HEALTH CARE CORPORATION D/B/A THE REGIONAL MEDICAL CENTER (Tenn. June 24, 2010)

This appeal involves the application of the Tennessee Governmental Tort Liability Act to an action for damages filed against a defendant that was not covered by the Act when the injury producing events occurred.

The defendant filed a motion for partial summary judgment in the Circuit Court for Shelby County seeking the benefit of the claims and defenses available to government entities under the Act. The plaintiffs responded by challenging the constitutionality of legislation extending the coverage of the Act to the defendant on the ground that the legislation had been enacted after the plaintiffs had sustained their injuries. The trial court held that the Act applied to the defendant but granted the plaintiffs permission to pursue an interlocutory appeal.

We granted the plaintiffs' application for permission to appeal after the Court of Appeals declined to consider the case. We have determined that applying the substantive amendment to the Tennessee Governmental Tort Liability Act enacted after the injury-producing events occurred to the plaintiffs' damage claims violates the prohibition against retrospective laws in Article I, Section 20 of the Constitution of Tennessee.

Opinion available at:
http://www.tba2.org/tba_files/TSC/2010/bellj_062410

Court reviews causation and whether the trial court properly denied motions for summary judgment in a medical malpractice case

CAROL E. MILLER v. JOEL S. BIRDWELL, M.D., ET AL. (Tenn. Ct. App. June 23, 2010)

This appeal involves claims for medical malpractice against three doctors. The doctors each filed a motion for summary judgment. The trial court denied all three motions. After reviewing the record, we find that there are no material issues of fact in dispute. The defendant-doctors affirmatively negated an essential element of the Plaintiff's claim - causation. Plaintiff failed to come forward with expert proof to demonstrate that there was a material issue of fact in dispute. Accordingly, the doctors are entitled to summary judgment. Consequently, this Court finds that the trial court erred in denying the motions for summary judgment. Reversed and remanded.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/millerc_062310.pdf

Court reviews whether the statute of limitations barred claims in a case involving illnesses resulting from exposure to toxic mold

VICTORIA DUTTON, ET AL. v. FARMERS GROUP, INC., ET AL. (Tenn. Ct. App. June 22, 2010)

Plaintiffs' home flooded and incurred severe water and mold damage when the hot water tank burst. Plaintiffs began to experience varying illnesses after moving back into the home. Despite Defendants' assurances that the home was safe, three years after moving back into the home, Plaintiffs discovered that their home was contaminated with toxic mold.

Thereafter, Plaintiffs filed suit against Defendants alleging various claims. Defendants moved to dismiss the Complaint asserting that the statute of limitations barred the claims. After a hearing, the trial court agreed and dismissed Plaintiffs' Complaint. Plaintiffs then filed a motion to alter or amend the judgment; the trial court denied the motion. Plaintiffs appeal. We reverse.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/duttonv_062210.pdf

SUSANO concurring
http://www.tba2.org/tba_files/TCA/2010/duttonv_CON_062210.pdf

Court reviews the standard of care owed by a physician to a patient in a medical malpractice case.

MELISSA MICHELLE COX v. M. A. PRIMARY AND URGENT CARE CLINIC et al. (Tenn. June 21, 2010)

We granted permission to appeal in this case to address the standard of care that applies to a physician assistant in a medical malpractice case. The plaintiff sued for injuries she allegedly suffered as a result of physician assistant Michael Maddox's failure to diagnose her condition accurately. The plaintiff did not sue Maddox, but sued the clinic which he owned and in which he practiced and Dr. Austin Adams, Maddox's supervising physician.

The defendants filed a joint motion for summary judgment, supported by their testimony that (1) Maddox did not violate the standard of care applicable to physician assistants and (2) Dr. Adams did not violate the standard of care applicable to physicians. The plaintiff responded with her cardiologist's testimony that Maddox violated the standard of care applicable to primary care physicians. The cardiologist testified that he was not familiar with physician assistants or their supervision.

The trial court granted the defendants' motion for summary judgment on the basis that the plaintiff had failed to establish that Maddox violated the professional standard of care applicable to him. The Court of Appeals reversed the trial court, holding that the standard of care applicable to physician assistants is the same as that applicable to physicians. We reverse the Court of Appeals and hold that the standard of care applicable to physician assistants is distinct from that applicable to physicians. The trial court's summary judgment in favor of the defendants is reinstated, and the case is dismissed.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/coxm_062110.pdf

Worker's Compensation Panel reviews reconsideration action and subject matter jurisdiction.

LARRY BESHIRES v. BERKLEY REGIONAL INSURANCE COMPANY (TWCA June 18, 2010)

These workers' compensation appeals were consolidated for hearing and disposition by order dated May 27, 2009. The employee, Larry Beshires, settled a claim for work-related injuries to his left knee and right shoulder, based upon the two and one-half times impairment cap in Tennessee Code Annotated section 50-6-241(a)(1). The settlement was approved by the Chancery Court of Fayette County.

Mr. Beshires subsequently sustained a second injury, or aggravation of the previous injury, to his shoulder. He returned to work for a time, but then retired. He filed suit in the Chester County Chancery Court, seeking benefits for the new injury or, alternatively, reconsideration of his prior settlement. The reconsideration action was transferred to the Chancery Court of Fayette County. After a hearing on the merits, the Fayette County court declined to award additional benefits. The Chester County court awarded 48% permanent partial disability to the body as a whole for the later injury.

Both sides have appealed, and the appeals have been consolidated by order of the Supreme Court. Mr. Beshires contends that the Fayette County court erred by failing to award additional benefits. The employer contends that the Chester County court did not have subject matter jurisdiction, because the benefit review conference process had not been exhausted. We affirm both judgments.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/beshiresl_061810.pdf

Court reviews whether the trial court properly granted summary judgment in a medical malpractice case

NANCY LUNA v. ROGER DEVERSA, M.D. and HAMILTON COUNTY (Tenn. Ct. App. June 17, 2010)

This appeal arises from a medical malpractice claim. A surgeon performed a procedure on the plaintiff at the defendant hospital. The defendant hospitalist physician monitored the plaintiff's post-surgery recovery. The plaintiff filed this lawsuit asserting that the defendant hospitalist was negligent in releasing her from the hospital prematurely. The defendant hospitalist filed a motion for summary judgment, as did the hospital. The trial court granted summary judgment to both. We affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/lunan_061710.pdf

Court reviews the sufficiency of the evidence in a case involving a hunting accident

BOBBY GERALD RILEY, and Wife, TANYA RILEY, Individually and as next of kin for HUNTER RILEY v. JAMES ORR (Tenn. Ct. App. June 14, 2010)

This is an appeal of a jury verdict. The plaintiff was hunting with his son. The defendant was also hunting in the general area, and accidentally shot the plaintiff. The plaintiff filed a lawsuit against the defendant for negligence, and included a claim for negligent infliction of emotional distress on behalf of his son. The parties stipulated as to the defendant's liability, and a jury trial was held on the issue of damages.

The jury instructions included instructions on the plaintiff father's mental pain and suffering and the son's emotional injury, but did not separately address the plaintiff father's emotional injury. After deliberating, the jury returned a verdict awarding damages to the plaintiff father as well as an award for the son's emotional injury. The trial court denied the defendant's motion for a new trial and approved the verdict. The defendant now appeals.

On appeal, the defendant challenges the sufficiency of the evidence supporting the verdict on several elements of damages, and argues that the inconsistency in the jury instructions on emotional injury necessitates a new trial. We affirm in part, vacate in part, suggest remittitur as to the awards for future medical expenses and for emotional injury, and remand for further proceedings.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/rileyb_061410.pdf

Court reviews allocation of liability in an automobile accident

PAMELA C. BESS v. PROPERTIES, L.P. ET AL. (Tenn. Ct. App. June 14, 2010)

Car A was traveling north on a two-lane highway. Car B, a city police vehicle with its lights and siren on, was also traveling north on the same highway to answer a call. Car A could not pull off the road to the right to yield to Car B and instead turned left as Car B was passing. A collision ensued in which the driver of Car A suffered serious injuries. The driver of Car A sued the city. The trial court found the city 75% liable for the accident. The city appealed. We reverse the trial court's judgment, finding the driver of Car A more than 50% responsible for the accident.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/bessp_061410.pdf

Court reviews summary judgment ruling in dental malpractice case

CHRISTINE GREENWOOD v. KIRBY FAMILY DENTISTRY, P.C., ET AL. (Tenn. Ct. App. June 7, 2010)

The trial court granted Defendants' motion for summary judgment in this action for dental malpractice. We affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/greenwoodc_060710.pdf

Court reviews denial of motion for directed verdict in medical malpractice case

TERESA LYNN STANFIELD, ET AL. v. JOHN NEBLETT, JR., M.D., ET AL. (Tenn. Ct. App. June 4, 2010)

This is a medical malpractice case. The jury returned a verdict, finding that the Appellee/Doctor deviated from the standard of care, but that his deviation was not the legal cause of the injury. Appellant contends that the trial court erred in denying her motion for a directed verdict, erred in ruling on her objections to Appellee's experts and the impeachment of her experts, that she was prejudiced by the language used on the verdict form, and that the trial court abused its discretion in allowing Appellee to make a powerpoint presentation during opening statements and closing arguments. Finding no error, we affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/stanfieldt_060410.pdf

Court considers an issue of uninsured motorist coverage in an interlocutory appeal

RANDALL D. KISER v. IAN J. WOLFE & CONSUMERS INSURANCE COMPANY (Tenn. Ct. App. May 28, 2010)

This interlocutory appeal considers an issue of uninsured motorist coverage following an automobile accident in which Plaintiff Randall D. Kiser was permanently injured. The plaintiff was working within the scope of his employment, driving for a towing company, when his truck was struck by Defendant Ian J. Wolfe's vehicle. The defendant driver tendered his liability policy limits to the plaintiff and is not a party to this appeal. The employer towing company was insured by Defendant Consumers Insurance Company. In anticipation of arbitration for determination of damages and liability, the insurance company moved for partial summary judgment.

The trial court denied summary judgment but granted the insurance company permission for an interlocutory appeal to determine two issues, on which we hold:
(1) On a policy of vehicle insurance, the statutory requirement of Tenn. Code Ann. section 56-7-1201(a)(2) for a written rejection of uninsured/underinsured motorist benefits or written selection of uninsured/underinsured motorist benefits lower than liability limits is met when the insured signs an application containing a lower selection but neglects to initial a block provided for that purpose; and
(2) the insurer bears the burden of proof to show that the insured signed an insurance contract application containing a stated limit of uninsured/underinsured motorist coverage, but once that burden has been met, the insured must raise any issue that the insurer obtained the insured's signature unlawfully under Tenn. Code Ann. section 56-7-1201(a)(2).

We vacate the trial court's denial of the insurance company's Motion for Partial Summary Judgment and remand for reconsideration in light of this holding.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/kiserr_052810.pdf

Court reviews whether the exclusive remedy rule barred an employee's negligence suit

JAMES P. GRIFFITH, ET AL. v. JELLICO COMMUNITY HOSPITAL, INC. (Tenn. Ct. App. May 28, 2010)

Employee, whose employer provided services pursuant to a contract with hospital, sustained injuries from a fall while working on hospital’s premises. Employee subsequently filed a negligence action against hospital. The trial court permitted employer to intervene in the suit. Hospital filed a motion for summary judgment, and after an evidentiary hearing, the trial court found that hospital was the principal contractor pursuant to Tenn. Code Ann. section 50-6- 113 and the exclusive remedy rule barred employee's negligence suit. The trial court granted summary judgment in favor of hospital, and employee appealed. We affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/griffithj_052810.pdf

Supreme Court reviews whether records made in the ordinary course of a hospital's business are covered by the peer review privilege

KIMBERLY POWELL v. COMMUNITY HEALTH SYSTEMS, INC. ET AL. (Tenn. May 24, 2010)

This appeal involves the evidentiary privilege in the Tennessee Peer Review Law of 1967 [Tenn. Code Ann. section 63-6-219 (Supp. 2009)]. A former hospital employee filed suit in the Chancery Court for Bradley County against the hospital and an orthopaedic surgeon on the hospital's medical staff. During discovery, the former employee sought to depose the hospital's infection control director regarding the details of an investigation into postoperative nosocomial infections and her knowledge of whether the defendant surgeon had tested positive for infectious diseases. The hospital moved for a protective order on the ground that the requested information was privileged under Tenn. Code Ann. section 63-6-219(e).

The trial court declined to issue a protective order after determining that the information sought by the former employee was not privileged because it had been created in the regular course of the hospital's business and because the infection control director was the "original source" of the information. After granting the hospital an interlocutory appeal, a divided panel of the Court of Appeals affirmed the trial court. Powell v. Cmty. Health Sys., Inc., No. E2008-00535-COA-R9-CV, 2009 WL 17850 (Tenn. Ct. App. Jan. 2, 2009).

We granted the hospital's Tenn. R. App. P. 11 application for permission to appeal. We have determined that records received or made in the ordinary course of a hospital's business apart from the operation of a peer review committee are not protected by the peer review privilege in Tenn. Code Ann. section 63-6-219. We have also determined that documents prepared by or at the request of a peer review committee exercising its peer review function and documents prepared by third parties as part of the work of a peer review committee performing its peer review function are privileged. Finally, we have determined that the hospital did not waive its right to invoke the privilege in Tenn. Code Ann. section 63-6-219(e) with regard to the work performed by its infection control director in the context of a peer review proceeding.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/powellk_052410.pdf

WADE concurring
http://www.tba2.org/tba_files/TSC/2010/powellk_CON_052410.pdf

TN Supreme Court reviews the Peer Review Law in a case involving services provided by various hospitals

LEE MEDICAL, INC. v. PAULA BEECHER ET AL. (Tenn. May 24, 2010)

This appeal involves the application of the Tennessee Peer Review Law of 1967 [Tenn. Code Ann. section 63-6-219 (Supp. 2009)] to a hospital system's business decision regarding the provision of vascular access services to patients in its member hospitals. The hospital system had customarily outsourced these services at several of its hospitals, but, following an audit, it decided to discontinue outsourcing the services and to begin providing them using nurses employed by its own hospitals.

After several of the system's hospitals cancelled their vascular access services contracts, the vendor that had been providing the services filed two suits in the Circuit Court for Sumner County against the manufacturer of the catheters used to provide the services and one of its employees, a staffing affiliate of the hospital system and two of its employees, and the chief nursing officer at one of the system's hospitals.

These suits, which were eventually transferred to the Circuit Court for Williamson County and consolidated, sought damages under numerous theories based on the vendor's allegations that the defendants, all of whom had played a role in the audit, had disparaged the manner in which it had been providing the vascular access services and had improperly interfered with its contracts. During discovery, the vendor sought copies of various records relating to the audit of its services. The defendants claimed that these records were covered by the privilege in Tenn. Code Ann. section 63-6-219(e). After reviewing the disputed records in chambers, the trial court determined that most of the requested records were covered by the privilege. The trial court also granted the vendor permission to pursue an interlocutory appeal to the Court of Appeals; however, the Court of Appeals declined to accept the appeal.

We granted the vendor's Tenn. R. App. P. 11 application to address the trial court's interpretation and application of Tenn. Code Ann. section 63-6-219(e). We have determined that the trial court interpreted the privilege in Tenn. Code Ann. section 63-6-219(e) too broadly. Therefore, we vacate the portions of the trial court's discovery orders applying the privilege in Tenn. Code Ann. section 63-6-219(e) and remand the case to the trial court for further proceedings.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/leemedical_052410.pdf

WADE dissenting
http://www.tba2.org/tba_files/TSC/2010/leemedical_DIS_052410.pdf

TWCA reviews the limitation of permanent partial disability benefits where an employee chooses voluntary layoff

KIMBERLY WHEELER v. WHIRLPOOL CORPORATION (TWCA February 3, 2010)

In this workers' compensation action, the employee, Kimberly Wheeler, sustained repetitive trauma injuries to both arms. The injuries were accepted by her employer, Whirlpool Corporation, as compensable. After having surgery on both arms, she returned to work, initially in a light-duty status, and later to full duty. The product line on which she worked was then shut down and moved to another location. She was offered the option of accepting a voluntary layoff or moving to another product line. She chose the voluntary layoff. Under the terms of her employment contract, she continued to be an employee although she was not working. Eventually, the entire plant closed and Ms. Wheeler was terminated at that time. The trial court found that she had meaningful return to work and voluntarily left her employment. For that reason, it limited its award of permanent partial disability benefits to one and one-half times the anatomical impairment in accordance with Tennessee Code Annotated section 50-6-241(d)(1)(B). The employee has appealed, contending that the trial court erred by applying the one and one-half times impairment cap. We agree and modify the judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/wheelerk_020310.pdf

TWCA reviews whether the trial court properly dismissed claims against an Injury Fund

TIMOTHY TODD v. MTD CONSUMER GROUP ET AL. (TWCA May 13, 2010)

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The employee fell from a platform at work. The injury was accepted by his employer as compensable. After a period of medical treatment, the authorized physicians released the employee to return to work with no permanent impairment or restrictions. The employee sought medical treatment on his own. Ultimately, he had surgery on his back and neck. He filed suit against his employer. Employee had two previous workers' compensation awards. Several months later, he amended his complaint to add the Second Injury Fund as a defendant.

After a trial on the merits, the trial court found that the employee had sustained a compensable injury which resulted in an 85% permanent partial disability to the body as a whole. The court apportioned the award according to Tennessee Code Annotated section 50-6-208(b). It then dismissed all claims against the Second Injury Fund, based upon the statute of limitations. It awarded some medical expenses claimed by the employee, but denied others. On appeal, the employee asserts that the trial court erred by dismissing the claim against the Fund, by incorrectly determining the percentage of disability represented by his earlier settlements, and by declining to award all requested medical expenses. Finding no error, we affirm the judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/toddt_051310.pdf

Court reviews sufficiency of trial court's award in a case involving a partnership

JOSEPH M. HASKINS, INDIVIDUALLY AND AS THE EXECUTOR OF THE ESTATE OF DREW E. HASKINS, JR., DECEASED v. DREW E. HASKINS, III (Tenn. Ct. App. May 13, 2010)

This case is on appeal for the second time after remand for determination of the defendant's request for attorney's fees, costs, and expenses. The defendant challenges the sufficiency of the trial court's award. After reviewing the record, we reverse in part and affirm in part the trial court's judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/haskinsj_051310.pdf

TWCA reviews whether the trial court erred by failing to require an employee to submit to an independent medical examination

VICKIE J. MYERS v. VANDERBILT UNIVERSITY (TWCA May 11, 2010)

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 50-6-225(e)(3) (2008) for a hearing and a report of findings of fact and conclusions of law. After developing an allergy to latex, a hospital employee filed a claim for workers' compensation benefits in the Chancery Court for Davidson County. While the case was pending, the trial court declined to require the employee to submit to an independent medical examination in accordance with Tenn. Code Ann. section 50-6-204(d)(1) (Supp. 2009). The trial court conducted a bench trial and determined that the employee's latex allergy was an occupational disease. The trial court also determined that the employee had a fifteen percent impairment to the body as a whole and awarded her permanent partial disability at fifty percent. The employer has appealed. We have determined that the trial court erred by failing to require the employee to submit to an independent medical examination. Accordingly, we vacate the judgment and remand the case for further proceedings.

Opinion may be found at:
http://www.tba2.org/tba_files/TSC_WCP/2010/myersv_051110.pdf

Court reviews jurisdiction of a wrongful death case against a nursing home

ALLISON J. PERSON ET AL. v. KINDRED HEALTHCARE, INC., d/b/a PRIMACY HEALTHCARE AND REHABILITATION CENTER, ET AL. (Tenn. Ct. App May 7, 2010)

This is an action for negligence and wrongful death filed against a nursing home by the administrator of decedent patient's estate. The trial court denied Defendant nursing home's motion to dismiss or, in the alternative, for summary judgment upon finding decedent patient was not competent to execute the power of attorney pursuant to which decedent's daughter had executed an arbitration agreement with Defendant. Defendant appeals. We dismiss the appeal for lack of jurisdiction.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/persona_050710.pdf

Rule 60.02(1) relief denied for statute of limitations

WILLIAM JEFFREY WALKER v. NISSAN NORTH AMERICA, INC. (Tenn. Ct. App. August 18, 2009)

This appeal involves the dismissal of a personal injury case arising from an accident that occurred at Defendant's automobile manufacturing plant. The suit was originally filed and then voluntarily dismissed for improper venue. The case was filed again and later dismissed for failure to prosecute. Plaintiff filed a Motion to Set Aside the Order of Dismissal which was denied by the trial court. Plaintiff appeals. Finding that the trial judge did not abuse his discretion, we affirm the judgment of the trial court.

The full text of this decision may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/walkerw_082409.pdf

Officer deposition of driver condition sufficient to exclude evidence of underage drinking in rear end collision

ELISHEA D. FISHER v. CHRISTINA M. JOHNSON (Tenn. Ct. App. August 18, 2009)

This is a personal injury suit arising out of an automobile accident. Plaintiff appeals the trial court's dismissal of her punitive damages claim, as well as its exclusion of evidence regarding Defendant's underage consumption of alcohol prior to the accident and leaving the scene of the accident. Because Plaintiff has failed to show a genuine issue of material fact exists regarding Defendant's intoxication, we affirm the trial court's dismissal of Plaintiff's punitive damages claim. Because liability has been stipulated in this matter, and the punitive damages claim properly dismissed, we find Defendant's underage consumption of alcohol and leaving the scene of the accident irrelevant. Thus, we affirm the exclusion of such evidence.

The full text of this opinion may be found at the TBA website: http://www.tba2.org/tba_files/TCA/2009/fishere_082409.pdf