TAM-BYTES

June 8, 2015
Vol. 18, No. 23
2015 TAM CLE CALENDAR

Webinars
Proving Defamation from the Use of Social Media: A Primer for
Attorneys, 60-minute webinar presented by Marcus Chatterton, with
Balch & Bingham in Birmingham, on Tuesday, June 30, at 10 a.m.
(Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
Maximizing Uninsured Motorist Coverage in Tennessee from the
Plaintiff's Perspective, 60-minute webinar presented by Laura Baker,
with the Law Offices of John Day in Brentwood, on Wednesday, July 8, at
10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit
Tennessee Landlord and Tenant Law: Evictions, Court, and
Litigation, 60-minute webinar presented by Joshua Kahane, with
Glankler Brown in Memphis, on Thursday, July 16, at 2 p.m. (Central), 3
p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Tennessee's New Business Court is Now Open for Business, 60minute webinar presented by Chancellor Ellen Hobbs Lyle, Davidson
County Chancery Court, on Thursday, July 23, at 2 p.m. (Central), 3 p.m.
(Eastern).
*Earn 1 hour of GENERAL credit
For more information or to register for any of our CLE events, call (800) 727-5257 or
visit us at www.mleesmith.com

On-Site Event

Personal Injury Law Conference for Tennessee Attorneys

WHEN: Friday, September 25
WHERE: Nashville Nashville School of Law
CLE: Earn up to 7.5 hours of CLE, including 6.5 hours of GENERAL and
1 hour of DUAL credit
FACULTY: 16th Judicial District Circuit Judge Mark Rogers; Laura
Baker, Law Offices of John Day; Brandon Bass, Law Offices of John Day;
Philip N. Elbert, Neal & Harwell; Michael H. Johnson, Howard, Tate,
Sowell, Wilson, Leathers & Johnson; Chris Tardio, Gideon, Cooper &
Essary; and Bryan K. Williams, Gullett Sanford Robinson & Martin
HIGHLIGHTS: Review of recent personal injury cases; constitutionality
of caps on damages; recent developments in healthcare liability pre-suit
notice and certificate of good faith requirements and ex parte
communications; trial judges dos and donts for arguing for or against a
motion for summary judgment; handling complex subrogation and lien
issues; social media, the internet, and ESI challenges; effective direct
examination, cross-examination, and redirect; deposition strategies
preparing for deposition, preparing the witness, and taking the deposition;
and interplay of ethics, evidence, and experts.
To learn more or to register, visit: www.mleesmith.com/tn-personal-injury-law
IN THIS WEEKS TAM-Bytes
Supreme Court holds Taylor v. Butler did not adopt per se rule that
any degree of non-mutuality of remedies in arbitration provision in
adhesion contract renders provisions unconscionable and
unenforceable, and hence, ruling in Taylor is not preempted by
federal law;
Supreme Court says trial courts suspicion that witnesss claim of
memory loss is feigned or exaggerated does not defeat inconsistent
nature of prior statement, and even when court admits witnesss prior
hearsay statements as substantive evidence, and witness claims at
trial not to remember information contained within statements,
Confrontation Clause is not violated when defendant has opportunity
to cross-examine witness;

 Workers Comp Appeals Board, in affirming trial courts order

requiring employer to provide panel of orthopedic physicians and
initiate temporary disability benefits, says act of employee in reentering delivery van after relieving herself had rational connection
to her work activities sufficient to establish casual connection
between her injury and risk inherent to her work;
In slip and fall case, Court of Appeals rules duty of care owed by
owner of business did not extend to height variation between level of
concrete parking landing and parking lot because it did not pose
unreasonable risk and was open and obvious condition;
In health care liability action, Court of Appeals rules that parties
intended execution of arbitration agreement upon patients admission
to nursing facility to constitute healthcare decision and that because
patients daughter did not have authority under power of attorney to
make healthcare decisions for patient, daughter did not have authority
to bind decedent to arbitration;
Court of Appeals says Department of Revenue may assess unremitted
sales and use taxes, interest, and penalties notwithstanding order of
criminal restitution for evasion of same taxes;
Court of Appeals, in case in which parties were divorced after 19year marriage, rules trial court erred in awarding wife alimony in
futuro of $4,000 per month when 43-year-old wife, who has Masters
degree in Science and Social Work, is capable of being rehabilitated
to high income in future, making long-term support unnecessary;
Court of Criminal Appeals reduces Class D felony evading arrest
conviction to Class E felony evading arrest when state failed to
present any proof from which rational trier of fact could find that
defendant created risk of death or injury to innocent bystanders or
other third parties; and
Court of Workers Compensation Claims says physician assistants
causation opinion does not meet evidentiary standards imposed by
July 1, 2014, amendment which utilizes term physician when
describing expert opinion necessary to establish whether injury arose
primarily out of and in course and scope of employment.

SUPREME COURT
COMMERCIAL LAW: When parties executed installment contract for
manufactured home that included arbitration provision under which sellers
retained right to seek relief in judicial forum for limited purposes, after
taking possession of home, buyer filed suit against sellers for breach of

contract, and sellers filed motion to compel arbitration, trial court erred in
holding that sellers retention of judicial forum for limited purposes
rendered arbitration agreement unconscionable; Taylor v. Butler, 142 SW3d
277 (Tenn. 2004), did not adopt per se rule that any degree of non-mutuality
of remedies in arbitration provision in adhesion contract renders provision
unconscionable and unenforceable, and hence, ruling in Taylor is not
preempted by federal law; it is not necessary or prudent to overrule or
modify ruling in Taylor at this time; arbitration agreement at issue was not
unreasonably favorable to sellers or beyond the reasonable expectations of
an ordinary person, or oppressive or unconscionable when sellers
articulated reasonable business justification for carve-out for foreclosure
procedure on manufactured home. Berent v. CMH Homes Inc., 6/5/15,
Knoxville, Kirby, unanimous, 21 pages.
http://www.tncourts.gov/sites/default/files/berentra.opn_.pdf

EVIDENCE: In case in which jury convicted defendant of second degree

murder on Count 1 of indictment, but on Count 2, jury acquitted defendant
of second degree murder and convicted him instead of reckless homicide,
jury verdicts were inconsistent, but because inconsistent verdicts are not
basis for relief, defendants convictions are affirmed; principles of double
jeopardy do not require that defendants second degree murder conviction
be merged into his reckless homicide conviction; reckless homicide is lesser
included offense of second degree murder; for purposes of TRE 803(26),
prior statement about events that witness claims at trial to be unable to
remember is inconsistent with witnesss trial testimony; trial courts
suspicion that trial witnesss claim of memory loss is feigned or
exaggerated does not defeat inconsistent nature of prior statement given fact
that trial courts lack tools to determine conclusively whether witness is
being entirely honest about extent of his or her recollection; even when trial
court admits witnesss hearsay statements as substantive evidence and
witness claims at trial not to remember information contained within
hearsay statements, Confrontation Clause is not violated when defendant
has opportunity to cross-examine witness at trial. State v. Davis, 6/3/15,
Jackson, Bivins, concurrence by Lee, 39 pages.
http://www.tncourts.gov/sites/default/files/davism.con_.opn_.pdf

WORKERS COMP APPEALS PANEL

WORKERS COMPENSATION: When employee injured his back at
work in 2/08, he was diagnosed with small disc herniation, L4-5 discectomy
was performed, employee returned to work, settlement was approved on
6/8/09 providing that he would continue to receive reasonable and

necessary medical benefits, treating physician (Dr. Bolt) recommended in

3/13 single-level fusion of L4 and L5 vertebrae, employer submitted
recommendation to utilization review (UR) provider, UR provider twice
declined to approve proposed surgery on grounds that it was not medically
necessary because guideline criteria [had] not been met, employee
appealed to Department of Labor and Workforce Development, Department
affirmed decision of UR provider, and employee filed motion to compel
medical treatment, trial court should have applied de novo standard in
reviewing case; trial courts decision is reversed as spinal fusion surgery
was reasonably necessary for employees treatment when Office of
Disability Guidelines (ODG) did not recommend spinal fusion for patients
who have had less than six months of failed conservative care, absent
structural instability, ODG may support recommendation of spinal fusion
for patients who have had more than six months of conservative care, and
Bolt recommended surgery on 6/12/13 at which point employee had been
receiving conservative care since 12/15/08. Shelton v. Joseph Construction
Co., 6/3/15, Nashville, Bivins, 11 pages.
http://www.tncourts.gov/sites/default/files/sheltonrandy.opnjo_.pdf

WORKERS COMP APPEALS BOARD

WORKERS COMPENSATION: When employee, while working for
temporary agency at company delivering packages, was delivering
packages in rural area, because of medical condition, she was taking
medication which caused frequent urination, while making delivery in rural
area, she became compelled to relieve herself outdoors near customers
driveway, customers garage door began to open, and as she hurried to reenter her delivery van, employee twisted and suffered pain and other
symptoms in her left knee, employee presented sufficient evidence to
support trial courts conclusion that she is likely to prevail at hearing on
merits, is entitled to panel of orthopedic physicians, and is entitled to
temporary partial disability benefits; act of re-entering delivery van had
rational connection to employees work activities sufficient to establish
causal connection between her injury and risk inherent to her work. Nance
v. Randstad, 5/27/15, Conner, 20 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1099&context=utk_workerscomp
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1085&context=utk_workerscomp

WORKERS COMPENSATION: In case in which employee stepped

from scissor lift on 1/10/14 while in course of his employment, injuring his
knee, and returned to doctor on 8/26/14 with complaints of right knee pain
and swelling for 1 week, evidence did not preponderate against trial
courts conclusion that employee failed to demonstrate that 8/11/14 work

incident caused new and distinct injury or advanced severity of pre-existing

right knee injury when although doctors 10/21/14 report stated that
employee returns today in followup of his right tibial stress fracture,
9/22/14 MRI report identifies [s]tress reaction edema and not stress
fracture, while impression included in doctors 9/23/14 report includes
[s]tress injury right medial tibial plateau, and plan states that employee
has frequent signs of stress reaction and worsening chondromalacia,
medical records do not otherwise indicate or suggest that employee
sustained acute stress fracture of medial tibial plateau, and more
importantly, none of medical records address cause of stress reaction/injury
or worsening chondromalacia; these conditions could be natural progression
of 1/14 injury and unrelated to alleged 8/14 incident. Bradshaw v. Jewell
Mechanical LLC, 6/4/15, Hensley, 20 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1100&context=utk_workerscomp
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1087&context=utk_workerscomp

COURT OF APPEALS
TORTS: When plaintiff walked from Radio Shack to seamstress shop, which
was owned by defendant, he crossed concrete parking bumper, strip of dirt
and grass, and stepped up approximately nine inches to reach concrete
parking landing at adjoining retail center, concrete parking landing had two
parking places, on other side of concrete parking landing, seamstress shops
parking lot is level with landing, except for three-foot section on right end of
landing, and on his way back to Radio Shack parking lot, plaintiff tripped on
three-foot section that is four inches lower than concrete parking landing,
trial court properly granted defendant, owner of seamstress shop, summary
judgment; because plaintiff was lawfully on defendants premises, defendant
owed duty to exercise reasonable care to prevent injury to him, but scope of
defendants duty of care did not extend to height variation between level of
concrete parking landing and parking lot for two reasons: It did not pose
unreasonable risk, and it was open and obvious condition. Boykin v. George
P. Morehead Living Trust, 5/29/15, MS, McBrayer, 7 pages.
http://www.tncourts.gov/sites/default/files/boykinrobertopn.pdf

TORTS: In case in which tenant fell on 4/30/12 as he was descending flight

of stairs that led from deck outside his apartment after step broke, trial court
properly granted landlord summary judgment when landlord had no
knowledge of any dangerous condition with regard to stairs at time lease was
executed in 3/11 and when person hired by landlord testified that repairs were
made to stairs in fall 2011 and that repairs remedied any problem that existed
at that time. Palmer v. Kees, 6/1/15, ES, Frierson, 7 pages.
http://www.tncourts.gov/sites/default/files/palmeropn2.pdf

TORTS: When defendant attorney and law firm (defendants) represented

plaintiff in suit filed against Mid-South Industries, Inc. from 8/05 to 8/07,
over course of Mid-South litigation, plaintiff became dissatisfied with
defendants performance, in part because defendants, over objection of
plaintiff, did not pursue claim for fraud against Mid-South, and plaintiff
filed legal malpractice action against defendants, trial court properly
granted defendants summary judgment based on statute of limitation; while
actual injury occurs when there is loss of legal right or remedy, actual
injury may also take form of plaintiff being forced to take some action or
otherwise suffer some actual inconvenience, such as incurring expenses, as
result of defendants negligent or wrongful act; when plaintiff was
complaining as early as 7/31/07 that he was required to spend additional
time and money due to defendants alleged negligence, plaintiff sustained
legally-cognizable injury for purposes of accrual of his malpractice claim as
early as 7/31/07, and hence, his suit, filed on 8/12/08, was barred by statute
of limitation. Davidson v. Baydoun, 5/29/15, MS, Clement, 6 pages.
http://www.tncourts.gov/sites/default/files/davidsonsopn.pdf

COMMERCIAL LAW: When, while patient at Camden Care Center in

Minnesota, decedent executed statutory short form power of attorney on
4/24/12 in favor of her daughter (appellee), power of attorney was executed
pursuant to Minnesota statute and granted appellee power [t]o act for
[decedent] in any way that [decedent] could act with respect to multitude of
matters, decedent also executed durable power of attorney for healthcare
pursuant to Minnesota statute designating appellee as decedents agent (my
attorney-in-fact) to make any health care decisions for me when, in the
judgment of my attending physician, I am unable to make this decision
myself and my agent consents to make the decision on my behalf, physician
never determined that decedent was incompetent or otherwise unable to make
healthcare decision for herself, and consequently, healthcare power of
attorney never became effective, decedent was discharged from Camden Care
Center and relocated to Memphis, decedent was later admitted to Harbor
View Nursing and Rehabilitation Center, appellee signed admission contract
and separate voluntary arbitration agreement, and appellee, as decedents
next friend, filed suit against Harbor View and its managing companies,
trial court properly denied defendants motion to compel arbitration; plain
terms of arbitration agreement clearly show that parties intended execution of
arbitration agreement to constitute healthcare decision, and because appellee
did not have authority to make healthcare decision for decedent, appellee did
not have authority to bind decedent to arbitration. Sanders v. Harbor View
Nursing & Rehabilitation Center Inc., 5/29/15, WS, Armstrong, 6 pages.
http://www.tncourts.gov/sites/default/files/sanderselizabethopn.pdf

COMMERCIAL LAW: When plaintiffs signed agreement to purchase

home, defendant built home and conveyed title to plaintiffs, plaintiffs
alleged that after moving in, they found drainage problems, water in
crawlspace, moisture condensation issues, gaps in hardwood floors, and
recurring flu and allergy symptoms in family members, plaintiffs filed suit
alleging causes of action for violation of Tennessee Consumer Protection
Act, breach of contract, breach of express warranty, breach of implied
warranty, quantum meruit, negligence, negligence per se, rescission, and
gross negligence, and defendant filed motion to stay litigation and compel
binding arbitration based on arbitration clause in purchase agreement, trial
court properly ruled that all of plaintiffs claims, except for claim of
fraudulent inducement, should be arbitrated; use of broad arbitration
language does not constitute waiver of right under Tennessee law to have
court consider issue of fraudulent inducement. White v. Turnberry Homes
LLC, 5/28/15, MS, Bennett, 4 pages.
http://www.tncourts.gov/sites/default/files/whitem.opn_.pdf

TAXATION: In case in which corporate officer responsible for paying

over sales taxes collected by corporation pled guilty to attempted tax
evasion, as part of his plea agreement, criminal court ordered corporate
officer to pay restitution of $17,500, after completing probation,
Department of Revenue (Department) notified corporate officer of
individual sales tax assessment of $137,494 arising from corporations
operations, and corporate officer challenged assessment, arguing that
amount of criminal restitution, which he had already paid, was full amount
of his individual liability to Department, given fact that criminal restitution
and civil tax liability are separate and distinct, trial court properly granted
Departments motion to dismiss; Department may assess unremitted sales
and use taxes, interest, and penalties notwithstanding order of criminal
restitution for evasion of same taxes. Amrokbeer v. Roberts, 5/28/15, MS,
McBrayer, 5 pages.
http://www.tncourts.gov/sites/default/files/amrokbeervroberts.opn_1.pdf

FAMILY LAW: Trial court did not err by implicitly denying mothers
motion to dismiss termination of parental rights petition on basis of
improper venue when venue was proper in Weakley County county where
child resided when he and his half-sister were first subject to Department of
Childrens Services custody in 4/11; TCA 36-1-114(3)(A) is not limited to
childs residence immediately preceding removal of child statutes use of
past tense indicates that residency of child may be determined using prior
residence of child, so long as child resided there when he or she became
subject to care or control of child-caring agency; because no clear and

convincing evidence exists that termination of mothers and fathers

parental rights is in childs best interest, trial courts termination of parents
parental rights is reversed mother and father enjoy close and meaningful
relationship with child, parents have maintained regular visitation with
child and have provided child with in-kind support, neither mothers nor
fathers mental or emotional statuses prevents them from effectively
parenting child, although child has done well in his foster parents home,
child knows mother and father as his parents and has frequently and
consistently expressed his desire to return to their care, and although
seriousness of childs exposure to methamphetamine should not be
discounted, there is no other evidence in record to suggest that child was
not well-cared for prior to his removal. In re Wesley P., 5/29/15, WS,
Stafford, 21 pages.
http://www.tncourts.gov/sites/default/files/wesleypopn.pdf

FAMILY LAW: In case in which parties were divorced after 19-year

marriage, trial court erred in awarding wife alimony in futuro of $4,000 per
month until her death or remarriage when 43-year-old wife is capable of
being rehabilitated to high income in future, making long-term support
unnecessary wife has Masters Degree in Science and Social Work,
although she has been out of workforce for about seven years prior to
starting her private practice as licensed clinical social worker, she has
experience in field, and wife testified that her business was steadily getting
better and that she expected to make $40,000 to $50,000 per year in
private practice if not more; although checks husband wrote to his girlfriend
constituted dissipation of marital assets, wife is not entitled to award equal
to full amount of dissipation when husband also has interest in money, and
trial court divided parties marital assets equally; husband is entitled to onehalf of assets he dissipated to reflect his one-half interest in dissipated
assets. Holdsworth v. Holdsworth, 6/3/15, WS, Gibson, 47 pages.
http://www.tncourts.gov/sites/default/files/holdsworthstevenopn.pdf

FAMILY LAW: In light of preference reflected in Tennessee statutes and

case law for short-term support, trial court did not abuse discretion in
refusing to award wife alimony in futuro when wife was awarded
transitional alimony of $5,000 per month for 24 months, at which point
monthly award would be reduced to $3,000 per month until wife reached
age of 67 if she had not remarried or cohabitated, and alimony in solido of
$25,000. Pair v. Pair, 5/29/15, MS, Dinkins, 10 pages.
http://www.tncourts.gov/sites/default/files/pairrebeccaopn.pdf

FAMILY LAW: In case in which, at time of divorce, mother was

designated primary residential parent of parties child, mother and child
subsequently moved to New York, and father was awarded 80 days of

parenting time, including one weekend per month, winter holidays, and
extended summer parenting time, trial court abused discretion in ordering
mother to pay for transportation costs of child to visit father in Tennessee,
including cost of additional ticket for parent or guardian to fly with 3-yearold child, when trial court imputed annual income of $50,000 to mother
based on her education, ability to secure job, and money donated from her
relatives, while husbands annual income was $75,000, both parents
recommended to court that they equally share costs of transporting child to
facilitate fathers parenting time, and requiring mother to pay all costs of
transportation will significantly deplete, if not exceed, annual award of
child support to mother, which creates unjust result upon mother; parenting
plan is modified to extent that parties will share equally costs of
transporting child. Keown v. Keown, 5/29/15, MS, Clement, 6 pages.
http://www.tncourts.gov/sites/default/files/keownm.opn_.pdf

FAMILY LAW: In case in which child, who was born in Russia in 2002,
was adopted by Tennessee resident (Hansen) in 2009, Hansen signed
agreement with World Association for Children and Parents (WACAP),
agreeing to remain financially responsible for all costs of care for the
child if he was removed from Hansens home, in 4/10, Hansen placed
unaccompanied child on one-way flight back to Russia, and in 5/10,
WACAP filed lawsuit against Hansen, who had since relocated to
California, in Bedford County circuit court, seeking child support and
damages arising out of alleged breach of adoption contract, Bedford County
circuit court lacked subject matter jurisdiction to modify its initial child
support order in 2/13 when interested parties left Tennessee in 2010, but
trial court did not impermissibly modify original child support order by
changing only intermediary designated to receive Hansens child support
payment original order required Hansen to pay $1,000 per month to
circuit court clerk, who would apparently send payment to designated
account in Russia, but trial courts 2/13 order required Hansen to pay same
amount by mailing payment to opposing counsel for forwarding to Russia;
this minor alteration constituted enforcement mechanism, specifying
manner of compliance with original support order in way that would most
effectively achieve payment for ultimate beneficiary in Russia; loss of
continuing exclusive jurisdiction does not deprive tribunal of power to
enforce arrearages that have accrued during existence of valid order. In re
Justin H., 5/29/15, WS at Nashville, Gibson, 13 pages.
http://www.tncourts.gov/sites/default/files/justinhopn.pdf

CIVIL PROCEDURE: In case in which man was injured in accident and

his relatives initiated conservatorship proceedings in probate court,
conservators were dissatisfied with probate courts handling of case and

moved to have case removed to chancery court, and probate court granted
motion to remove, but chancery court sent case back to probate court,
because probate court and chancery court in Rutherford County have
concurrent jurisdiction over conservatorship proceedings, chancery court
lacked subject matter jurisdiction to determine any issues in conservatorship
once case was filed in probate court; TCA 16-15-732(b) does not provide
authority for this case, that was initially filed in probate court, to be
removed to chancery court; chancery court was correct to review procedure
by which case was removed to its court from probate court. In re
Conservatorship of Beasley, 5/28/15, MS, Bennett, 7 pages.
http://www.tncourts.gov/sites/default/files/beasleyt.opn_.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL LAW: Evidence was sufficient to convict defendant, animal
care technician at animal shelter, of four counts of aggravated cruelty to
animals when defendant cruelly and intentionally choked dogs without
cause before they were euthanized, cruelty inflicted upon these animals was
excessive because dogs were choked with catchpole until they cried and
yelped in pain, collapsed, and struggled and gasped to breathe, no sedatives
were administered to animals because defendant choked them until they
collapsed to floor or were unconscious, at which point sedative was no
longer necessary, and defendant could have utilized squeeze gate to contain
dogs and to provide euthanasia technician with opportunity to administer
sedative. State v. Stewart, 6/4/15, Jackson, Montgomery, 20 pages.
http://www.tncourts.gov/sites/default/files/stewartbillyopn.pdf

CRIMINAL LAW: Defendants Class D felony evading arrest conviction

is reduced to conviction of Class E felony evading arrest when state failed
to present any proof from which rational trier of fact could find that
defendant created risk of death or injury to innocent bystanders or other
third parties proof showed that only individuals in area were defendant
and police officers, and although pursuit occurred in residential and
commercial area, defendant did not run stop light at high rate of speed.
State v. Brewer, 6/1/15, Jackson, Williams, 13 pages.
http://www.tncourts.gov/sites/default/files/brewer_draft.pdf

CRIMINAL PROCEDURE: Because motor vehicle habitual offender

(MVHO) judgment is not money judgment, it involves neither judgment
creditors nor judgment debtors, and, because it operates in same manner as
permanent injunction, MVHO judgment can never be satisfied as that
term is used in TRCP 69.04 rule provides that within 10 years from entry
of judgment, judgment creditor whose judgment remains unsatisfied may

move court for order requiring judgment debtor to show cause why
judgment should not be extended for additional 10 years; to conclude that
TRCP 69.04 causes automatic expiration of MVHO order after 10 years
would conflict with plain language of TCA 55-10-615(b) and established
precedent and would allow defendant to avoid prosecution by simple
expedient of failing to petition for restoration of his driving privileges. State
v. Parker, 6/1/15, Jackson, Witt, 6 pages.
http://www.tncourts.gov/sites/default/files/parkeranthenlopndoc.pdf

CRIMINAL PROCEDURE: Petitioners trial counsel, collectively

performed deficiently when first attorney, whether due to illness or
oversight, failed to follow petitioners directive to file motion to withdraw
her original guilty plea, and this error was compounded when petitioners
second attorney erroneously advised petitioner on clearly established rule of
procedure, thereby foreclosing available legal course of action most desired
by petitioner; record established reasonable probability that outcome of
petitioners case would have been different had either of her trial counsel
filed motion to withdraw her original guilty plea prior to entry of second
guilty plea when not only did petitioner contend that she had earnest change
of heart after plea, which potentially could be satisfactory basis for
withdrawal on its own, but petitioner was also presented with change in
circumstances victim had recanted part of his testimony that provided
factual basis for one of charges to which petitioner originally pled guilty; in
light of fact that petitioner received ineffective assistance of counsel prior to
entry of her second guilty plea, plea was entered unknowingly. Laird v.
State, 6/1/15, Nashville, Easter, 13 pages.
http://www.tncourts.gov/sites/default/files/lairdsylviaopn.pdf

COURT OF WORKERS COMPENSATION CLAIMS

WORKERS COMPENSATION: When employee, server at restaurant,
decided to ask off work early because her knees hurt, employee walked to
store office and approached desk of assistant manager, and, as she sat down
in chair to ask about leaving work early, employee twisted her right knee
when her right foot became entangled with chair leg, origin of employees
injury was not unexplained and, hence, injury was not idiopathic;
evidentiary standards imposed by 7/1/14 amendment utilize term
physician when describing expert opinion necessary to establish whether
injury arose primarily out of and in course and scope of employment,
Tennessee Physician Assistant Act recognizes that physician assistant is not
physician and shall only practice under supervision of physician, and hence,
physician assistants causation opinion does not meet statutory standard set

forth in TCA 50-6-102(13)(D) since it is not opinion of physician; provision

of reasonable and necessary medical treatment requires that employer
provide employee panel of orthopedic surgeons; because only causation
evaluation admitted into evidence was that given by physician assistant,
employee did not prove entitlement to temporary disability benefits by
medical expert opinion. Daniels v. Cracker Barrel Old Country Store Inc.,
2/25/15, Wyatt, 11 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1063&context=utk_workerscomp

WORKERS COMPENSATION: In case in which employee testified

that on 10/17/14, he slipped while weed-eating in wet grass near fence in
ditch and that his left foot fell into base of ditch, employee went to
emergency room two days later and was diagnosed with fractured foot, and
superintendent testified that employee did not mention injury to him on
10/17/14 and that he learned of alleged fall on 10/19/14, insufficient
evidence exists to prove that employee suffered acute injury arising
primarily out of and in course and scope of his employment on 10/17/14
when no provider explicitly linked fall employee described in history
portion of their records to their resulting diagnoses. Cooke v. Williamson
County Parks & Recreation, 2/25/15, Switzer, 8 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1062&context=utk_workerscomp

If you would like a copy of the full text of any of these opinions, simply
click on the link provided or, if no link is provided, you may respond to
this e-mail or call us at (615) 661-0248 in order to request a copy. You
may also view and download the full text of any state appellate court
decision by accessing the states web site by clicking here:
http://www.tncourts.gov