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TAM-BYTES

October 30, 2017


Vol. 20, No. 44

TAM Webinars

Jury Selection: The Art of Asking the Right Questions, 60-minute webinar
presented by Emily Taylor, with Watson, Roach, Batson, Rowell & Lauderback
in Knoxville, on Thursday, December 7, at 2 p.m. (Central), 3 p.m. (Eastern).
For more information, visit: www.mleesmith.com/jury-120717
or call (800) 727-5257

Legal Ethics Update: Cloud Computing, Mobile Technology, and Other


Law Practice Challenges, 60-minute webinar presented by Russell Belk,
with Sutherland & Belk in Nashville, on Wednesday, December 13, at 10
a.m. (Central), 11 a.m. (Eastern).
For more information, visit: www.mleesmith.com/ethics-121317
or call (800) 727-5257

Attorney ESI Update: How to Uncover and Use Social Media Evidence
for Maximum Case Benefit, 60-minute webinar presented by Marcus
Chatterton, with Balch & Bingham in Birmingham, on Wednesday,
December 13, at 2 p.m. (Central), 3 p.m. (Eastern).
For more information, visit: www.mleesmith.com/social-121317
or call (800) 727-5257

Ethics Update from the Tennessee Board of Professional Responsibility,


60-minute webinar presented by Eileen Burkhalter Smith, Disciplinary
Counsel with the Board of Professional Responsibility in Brentwood, on
Thursday, December 14, at 10 a.m. (Central), 11 a.m. (Eastern).
For more information, visit: www.mleesmith.com/ethics-121417
or call (800) 727-5257

Cyber-Theft and Data Breaches: What to Do When Your Tennessee


Client is Hacked, 60-minute webinar presented by Russell Taber, with
Riley, Warnock & Jacobson in Nashville, on Thursday, December 14, at 2
p.m. (Central), 3 p.m. (Eastern).
For more information, visit: www.mleesmith.com/cyber-121417
or call (800) 727-5257
Tips for Investigating and Trying Trucking Accident Cases in
Tennessee, 60-minute webinar presented by Drayton Berkley, with The
Berkley Law Firm in Memphis, on Tuesday, December 19, at 2 p.m.
(Central), 3 p.m. (Eastern).
For more information, visit: www.mleesmith.com/trucks-121917
or call (800) 727-5257

On-Site Event

Probate & Estate Planning Conference for Tennessee Attorneys


WHEN: THURSDAY & FRIDAY, DECEMBER 7 & 8
WHERE: Nashville School of Law
CLE: Earn 15 hours of CLE 12 hours of GENERAL and 3 hours of DUAL

SPEAKERS: Rebecca Blair, The Blair Law Firm, Brentwood; Alan L. Cates, Husch
Blackwell LLP, Chattanooga; Harlan Dodson, Dodson, Parker, Behm & Capparella
P.C., Nashville; Donald J. Farinato, Hodges, Doughty & Carson, PLLC, Knoxville;
Elizabeth B. Hickman, Goodman Callahan & Blackstone, PLLC, Nashville; Glen Kyle,
Monica Franklin & Associates, LLC, Knoxville; Patrick B. Mason, Mason Zoccola Law
Firm, PLLC, Memphis; Steve McDaniel, Williams McDaniel, Memphis; Sara E.
McManus, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Chattanooga; Hunter
R. Mobley, Howard Mobley Hayes & Gontarek, PLLC, Nashville; Jeff Mobley, Howard
Mobley Hayes & Gontarek, PLLC, Nashville; Julie Travis Moss, The Blair Law Firm,
Brentwood; and Michelle Poss, Law Office of A. Michelle Poss, Nashville

HIGHLIGHTS: Use of various trusts as estate planning tools; tips for drafting wills in
2018; trust drafting tips with samples; duties and liabilities of personal representatives;
implementing and handling conservatorships and guardianships; what to look for in
reviewing existing estate plans; dealing with tax issues when administering an estate;
using charitable trusts effectively; tips for drafting estate planning documents;
establishing a special needs trust; planning for a clients long-term care; understanding
issues that arise in small estates; probate litigation case law and legislative update; ethical
issues facing trust and estate planning attorneys; and ethical issues that arise when
choosing a client.

PRICING: $497 (full program) $70 off for any additional attendees from same
firm); $347 (One day only); and $247 (materials only)

For more information, visit www.mleesmith.com/tpep or call (800) 727-5257.


IN THIS WEEKS TAM-Bytes

Court of Appeals rules defendant did not defame plaintiff by posting


on Facebook photo of bumper stickers on defendants vehicle, some
of which incorporated Confederate Battle Flag, and expressing her
opinion that they revealed plaintiff as white supremacist;
Court of Appeals affirms trial courts refusal to impose parenting plan
that would effectively advance mothers religion while inhibiting
fathers religion when evidence was insufficient to prove that childs
exposure to fathers religion was harmful;
Court of Appeals reiterates that beneficiary designation in retirement
plan may only be changed as provided in plan, and as such, retirement
provision in couples marital dissolutation agreement did not revoke
beneficiary designation in husbands retirement plan;
Court of Appeals holds that sex offender community supervision for
life statutes, TCA 39-13-524 and 526, are not unconstitutional;
Court of Criminal Appeals reverses defendants evading arrest and
driving on revoked license convictions when trial court erred by
admitting photo of defendant, showing him with full beard and not
goatee, when photo, which was admitted to rebut testimony by
defense witness that defendant never had goatee, was irrelevant to any
issue on trial and was not admissible as substantive evidence of
defendants having goatee on night of crimes;
Sixth Circuit says district court properly denied defendants motion to
suppress evidence seized from his residence when affidavit filed in
support of search warrant contained sufficient nexus between drug
trafficking and inside of residence to apply good faith exception to
exclusionary rule; and
Court of Workers Compensation Claims, in case in which injured
workers presence on Workers Compensation Exemption Registry
was raised as defense, rules worker was not proper candidate for
Registry and that submission of Registry application was attempt to
avoid application of Workers Compensation Law to worker.

WORKERS COMP PANEL

WORKERS COMPENSATION: When employee ruptured L5/S1 disc in


8/91, had surgery and returned to work, suffered herniated disc at C5/6 and
C6/7 in 11/01, had surgery, and returned to work but could not perform
some of his job duties and overhead tasks, he had surgery in 2007 on his
shoulder to repair torn bicep, he returned to work, was fired in 2008 but was
reinstated, he bent over while stacking wood on 10/11/09 and could not
stand up for several minutes, he was terminated on 11/5/09, and he filed
complaint for workers comp benefits against employer, its insurer, and
Second Injury Fund, evidence did not preponderate against trial courts
finding that employee suffered compensable injury to his lower back on
10/11/09 when Dr. Kennedy testified that although he did not find any
anatomical changes in employees lumbar spine in 11/14/04 and 3/26/10
diagnostic image studies, he concluded 10/09 incident caused sprain to
employees lumbar spine and permanently aggravated and advanced pre-
existing, underlying, multiple-level degenerative disc disease, increasing
severity of that condition, Dr. Killeffer testified employees underlying
degenerative and previous operative changes were aggravated by his work
injury and caused his underlying condition to be more symptomatic, Dr.
Killeffer surmised that injury created symptoms and that anatomical change
did occur, and employee testified that he had been able to perform his job
responsibilities before 10/09 injury and could not engage in his usual
activities after injury; evidence did not preponderate against trial courts
apportionment of liability to employer of 52% of award and Second Injury
Fund of 48% when evidence established that employee had sustained
previous injuries in 1991, 2001, and 2007, he performed all of his job duties
from 9/21/09 until he was injured on 10/11/09, he had muscle soreness but
not severe pain until 10/09 injury, employee could perform his job duties
and engage in his usual activities before 2009 injury, Killefer determined
employee had 7% impairment rating because of 10/09 injury, Kennedy
concluded he had 9% impairment rating due to injury, employees
vocational expert opined that employee had 80% vocational impairment
because of injury based on restrictions imposed by Kennedy, and employers
vocational expert testified that employee had 30% vocational impairment
due to injury based on Killeffers testimony but admitted vocational
impairment was 70 to 75% when based on Kennedys testimony. Jeffers v.
Armstrong Wood Products, 10/24/17, Knoxville, Lee, 9 pages.
http://www.tncourts.gov/sites/default/files/20171024134832.pdf

WORKERS COMPENSATION: Under term condition as used in TCA


50-6-102(12)(C)(ii) (2014) (applicable to injuries occurring prior to 7/1/14),
employee can recover for gradual worsening or advancement of pre-existing
condition that causes need for surgery if employment is primarily
responsible for worsening or advancement of condition; evidence did not
preponderate against trial courts finding that employees work activities
primarily caused advancement of his pre-existing carpal tunnel syndrome
and cubital tunnel syndrome to point that surgery was required when
employee had carpal tunnel syndrome for nearly 20 years prior to 2011, he
successfully coped with it by working in job assignments that did not place
heavy demands on his hands, in early 2010, employee was assigned to
position that required repetitive use of torque gun, vibrating tool that he
operated with his hands, and about one year after onset of that job
assignment, he began to experience pain, numbness, and loss of grip strength
in both hands, especially in dominant right hand, and because of those
symptoms, surgery was necessary. Alexander v. NGMCO LLC, 10/26/17,
Nashville, Kirby, 11 pages.
http://www.tncourts.gov/sites/default/files/alexander_v._ngmco_aka_general_motors_llc.opn2_.pdf

CIVIL PROCEDURE: When employee, who drove tractor-trailer for


employer for 48 years until he retired, alleged that he suffered gradual
hearing loss arising out of and in course of his employment, doctor advised
employee on 10/29/09 that he had sustained significant hearing loss due to
his employment, but employee did not report his hearing loss to employer
or seek workers comp benefits until 10/30/12, evidence did not
preponderate against trial courts decision that employees gradual hearing
loss was not caused by his employment when tests on noise levels in trucks
that employee listed as those he drove showed average time-weighted
readings on three trucks were below 80-decibel threshold established in
trucking industry and when doctor agreed that if there was no significant
exposure to noise over 80 decibels, employees hearing should not become
worse due to his work, and two doctors testified that any hearing loss
progression could be attributed to non-work-related factors, such as aging
or familial, hereditary issues; because gradual hearing loss was not caused
by his employment, employee cannot rely on last-day-worked rule to toll
statute of limitation. United Parcel Service Inc. v. Millican, 10/24/17,
Knoxville, Lee, 6 pages.
http://www.tncourts.gov/sites/default/files/opinion_20171024125933.pdf

COURT OF APPEALS

TORTS: When child had hemispherectomy which removed portion of his


brain when he was one year old, child had shunt implanted to drain
cerebrospinal fluid in his brain, he underwent at least one shunt revision
procedure, in 5/11, when child was eight years old, he underwent surgery for
shunt revision, he was unable to walk following surgery, plaintiffs filed
health care liability action, and jury returned verdict finding no liability on
part of defendants, trial court did not err in its use of pattern jury instruction
containing words error in judgment as they properly reflected parties
claims and defenses when plaintiffs alleged doctors decision to continue to
attempt to remove shunt after he encountered difficulty was inappropriate
and that doctor should have made different decision; fact that defendants did
not admit to error in judgment does not invalidate use of this instruction
when plaintiffs presented proof that doctor erred in choosing to continue to
attempt to remove shunt. Commercial Bank & Trust Co. v. Childrens
Anesthesiologists P.C., 10/25/17, Knoxville, Swiney, 8 pages.
http://www.tncourts.gov/sites/default/files/commercial_bank__trust_company_et_al._v_childrens_anesthesiologists_p.c._et_al..pdf

TORTS: When defendant put up Facebook post featuring photograph of


back of plaintiffs vehicle, vehicle had number of bumper stickers on it,
some of which incorporated Confederate Battle Flag, along with photo,
defendant asserted in her Facebook post that plaintiff was white
supremacist, and plaintiff filed suit against defendant for defamation,
judgment in favor of plaintiff is reversed; taking statement in its entirety,
including photo, defendants written statement could only be read as being
her opinion based upon what photo showed and did not impl[y] the
existence of unstated defamatory facts; defendants written statement was
her comment upon true and published facts, photo, and as such was not
actionable even though stated in strong or abusive terms; defendant did
not defame plaintiff by posting photo of bumper stickers and expressing her
opinion, correctly or incorrectly, that they revealed plaintiff to be white
supremacist. Weidlich v. Rung, 10/26/17, Nashville, Swiney, 12 pages.
http://www.tncourts.gov/sites/default/files/weidlich.robert.opn_.pdf

COMMERCIAL LAW: When trial court found no evidence that individual


who signed arbitration agreement with nursing home on behalf of resident
had authority to do so, and that, in any event, form itself was not properly
completed, and nursing home appealed denial of nursing homes motion to
compel arbitration, arguing that trial court erred in deciding these issues
because they should have been resolved by arbitrator, due to trial courts
finding regarding contract formation issues, nursing home is not entitled to
enforce provisions of arbitration agreement regarding discovery; if
arbitration agreement was not legally binding between parties, neither was
its provision regarding discovery. Edwards v. Allenbrooke Nursing &
Rehabilitation Center LLC, 10/26/17, Jackson, Gibson, 9 pages.
http://www.tncourts.gov/sites/default/files/edwardsreginaopn.pdf

FAMILY LAW: In case in which mother was designated primary


residential parent of couples child at time of divorce, with each parent
awarded equal parenting time, based on ongoing conflict between parties,
evidence supported trial courts finding of material change in circumstances
warranting modification of parenting plan to effectively vest educational and
non-emergency healthcare decision-making authority with mother and to
award mother additional parenting time on religious and secular holidays;
trial court did not abuse discretion by refusing to impose parenting plan that
would effectively advance mothers religion while inhibiting fathers
religion when mothers evidence was insufficient to prove that childs
exposure to fathers religion was harmful. Pankratz v. Pankratz, 10/25/17,
Nashville, Goldin, 12 pages.
http://www.tncourts.gov/sites/default/files/pankratz.christen.opn_.pdf

FAMILY LAW: Trial judge properly considered husbands dissipation of


marital assets as one factor in context of weighing totality of circumstances
and equities of divorce husband had affair, he cashed out his Star
Retirement in amount of $20,204 even though there was in excess of
$50,000 in bank, husbands out-of-town trips had gotten more and more
expensive, and he admitted that he took his girlfriend on some trips with him
at time when he said his business was basically slow and he was not making
money; evidence preponderated in favor of award of transitional support
rather than rehabilitative support for wife when it was not practical for wife
to get job or go back to school because she was still responsible for couples
children and wife was earning just about as much as she could make
outside the home with time available. Slocum v. Slocum, 10/24/17,
Nashville, Susano, 16 pages.
http://www.tncourts.gov/sites/default/files/slocum.amy_.opn_.pdf

FAMILY LAW: Trial court did not err in granting wifes motion for
summary judgment and terminating wifes alimony in solido obligation to
husband when provision in marital dissolution agreement (MDA) relieved
wife of her total alimony obligation not just her obligation to pay husband
transitional alimony upon husbands non-compliance with certain
provisions of MDA and permanent parenting plan, and husband admitted
that he failed to comply with Passport Provision of parties permanent
parenting plan. Cherqui v. Laor, 10/25/17, Jackson, Goldin, 7 pages.
http://www.tncourts.gov/sites/default/files/cherquialicemarieopn.pdf

FAMILY LAW: In case in which plan administrator filed interpleader action


asking court to determine proper beneficiary of death benefits in retirement plan
after plan participant died, both his former wife and his estate demanded
payment from plan administrator, and although former wife was listed as
designated beneficiary in plan, estate claimed that beneficiary designation had
been revoked in couples marital dissolution agreement (MDA) couples
MDA did not revoke previous beneficiary designation; even if language in
MDA had been sufficient to revoke beneficiary designation, MDA was not sent
to plan administrator Tennessee courts require substantial compliance with
plans terms to give effect to purported beneficiary change; trial court erred in
dismissing wifes counterclaim alleging breach of implied covenant of good
faith and fair dealing in administration of plan when wife stated claim for
breach of contract, which may include breach of implied covenant of good faith
and fair dealing. Voya Retirement Insurance & Annuity Co. v. Johnson,
10/27/17, Nashville, McBrayer, 7 pages.
http://www.tncourts.gov/sites/default/files/voya.retirementv.johnson.opn_.pdf

FAMILY LAW: In case in which husband, military retiree, was given


service-connected disability rating of 100%, husbands disability rating did
not deprive wife of interest in his military retirement at time of couples
divorce; language in couples marital dissolution agreement (MDA)
concerning husbands military retired pay represented attempt by wife to
avoid negative consequences of husband waiving retirement pay to receive
disability benefits, but by providing that if wife receives deduction from
husbands military retirement pension, such as for election of VA disability,
then percentage of military retirement pension will be adjusted to equal same
dollar sum as if no disability or similar deduction was made, MDA sought to
impermissibly award wife share of husbands waived retired pay federal
law completely preempts states from treating waived retirement pay as
divisible community property; trial courts judgment is affirmed, as
modified, to reflect that wife is awarded 26% of husbands disposable
retired pay as that term is defined by Former Spouses Protection Act.
Vlach v. Vlach, 10/27/17, Nashville, McBrayer, 9 pages.
http://www.tncourts.gov/sites/default/files/vlachvvlach.opn_.pdf

CIVIL PROCEDURE: Supreme Court Rule 10B, Section 1.02 requires


trial court first to analyze motion to disqualify before proceeding to any
substantive issues in case; trial court seemingly determined that will at issue
was ineffective, thereby obviating probate and making motion to recuse
moot; instead, Section 1.02 required trial court to analyze motion to
disqualify, which in this case would have required denial of motion, before
determining whether will was effective; trial courts order to deny motion to
recuse is modified, and order regarding validity of will is vacated. In re
Estate of Abbott, 10/27/17, Jackson, Gibson, 4 pages.
http://www.tncourts.gov/sites/default/files/estateofjoemarceabbottopn.pdf

CIVIL PROCEDURE: In case in which appellant, sex offender who filed


complaint for declaratory relief under 42 USC 1983 against Board of
Probation and Parole and Tennessee Attorney General challenging Sex
Offender Directives as applied to him, one-year statute of limitation for civil
actions brought under federal civil rights statutes applies to appellants 42
USC 1983 claim, and appellant is not entitled to relief under continuing
violation doctrine; appellants Uniform Administrative Procedures Act
(UAPA) declaratory judgment claim asserting violations of federal
constitution is not subject to one-year statute of limitation that governs his 42
USC 1983 claim; because there is no statute of limitation applicable to
appellants UAPA declaratory judgment claims alleging violations of federal
constitution, such claims are subject to general 10-year statute of limitation;
statutes regarding community supervision for life of sex offenders do not
violate Tenn. Const. Art. II, Sec. 1 through 3; community supervision for life
statutes, TCA 39-13-524 and 526, are not void for vagueness; guidelines
established by Sex Offender Directives did not increase appellants
punishment beyond what was prescribed when crime was committed. Nunn v.
Tennessee Department of Correction, 10/23/17, Nashville, Gibson, 50 pages.
http://www.tncourts.gov/sites/default/files/nunn.craig_.opn_.pdf

COURT OF CRIMINAL APPEALS

EVIDENCE: In case in which defendant was convicted of first degree


felony murder and aggravated child abuse, trial judge did not err in allowing
two experts to testify on shaken-baby syndrome and/or non-accidental
trauma when such testimony assisted jury in making inquiry into whether
crime of child abuse had taken place and in determining cause of victims
injuries. State v. Iceman, 10/24/17, Nashville, Thomas, 46 pages.
http://www.tncourts.gov/sites/default/files/iceman.opn_.pdf

CRIMINAL LAW: Defendants dual convictions for aggravated assault


and attempted aggravated kidnapping did not violate double jeopardy when
rational trier of fact could have found that aggravated assault was
accomplished when defendant put knife to victims throat at roadside and
that attempted aggravated kidnapping involved separate attempted removal
or confinement when defendant dragged victim down driveway. State v.
Tittle, 10/23/17, Nashville, Williams, 17 pages.
http://www.tncourts.gov/sites/default/files/tittle.opn_.pdf

CRIMINAL LAW: In case in which defendant was convicted of evading


arrest and driving on revoked license, trial court committed reversible error
by admitting photograph of defendant, showing him with full beard and
not goatee, when photo, which was admitted to rebut testimony by defense
witness (defendants father) that defendant never had goatee, was irrelevant
to any issue on trial and was not admissible as substantive evidence of
defendants having goatee on night of crimes; trial court erred in failing to
instruct jury that photo could be used only to impeach defendants
credibility, and without limiting instruction, jury likely considered photo as
substantive proof that defendant had goatee on night of crimes, meaning
photo was valuable to states case and extremely damaging to defense; given
fact that while states case was strong, it was not overwhelming, defendants
convictions are reversed, and case is remanded to trial court for further
proceedings. State v. Sharp, 10/24/17, Nashville, Ogle, Montgomery
concurred in results only, 21 pages.
http://www.tncourts.gov/sites/default/files/sharp.opn_.pdf

SIXTH CIRCUIT COURT OF APPEALS

CRIMINAL PROCEDURE: In case in which narcotics officer watched


defendant sell marijuana to undercover informant in driveway of defendants
home, officer sought search warrant for residence, officers affidavit
recounted recent drug deal, confidential tip that defendant was selling
marijuana from residence, defendants previous drug offenses, and fact that
defendant kept pit bulls at his residence, search warrant was issued, and
subsequent search uncovered over pound of marijuana, firearm, ammunition,
and roughly $32,000 in cash, some of which was traced to controlled buy,
district court properly denied defendants motion to suppress evidence
seized from his residence; affidavit filed in support of search warrant
contained sufficient nexus between drug trafficking and inside of residence
to apply good faith exception to exclusionary rule. United States v. White,
10/27/17, Griffin, dissent by Stranch, 34 pages, Pub.
http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0242p-06.pdf

TRIAL COURTS

COMMERCIAL LAW: When defendant sought recovery of attorney fees


pursuant to identical contractual provisions in two agreements parties entered
into Sales Representative And Specialty Consultant Agreement and
Independent Contractor Agreement and plaintiff argued that two agreements
were merged into 5/10/13 Employment Agreement that did not include attorney
fees provision, different contracts did not completely cover same subject matter
when different contracts created different legal relationships between parties,
doctrine of merger is inapplicable to merge either of two earlier contracts into
2013 contract, and thus, identical attorney fees provision of two agreements
remains intact and enforceable; prevailing party for purposes of recovering
reasonable attorney fees does not have to be party who initiated suit or party
who seeks affirmative relief, and fact defendant took defensive posture in this
suit does not disqualify her from being prevailing party; defendant is prevailing
party because she obtained favorable judgment from court dismissing plaintiffs
claims in their entirety on summary judgment. Cryosurgery Inc. v. Rains,
8/18/17, Davidson Chancery, Lyle, 27 pages.
https://www.tncourts.gov/docs/documents/judicial-resources/biz-court-cryosurgery-inc-v-rains-15-871-bc-8-18-17pdf

CRIMINAL PROCEDURE: When petitioner allowed his father to drive


his Jeep on 7/23/16, father was stopped, arrested, and given Notice of
Property Seizure of vehicle on basis that it was subject to forfeiture because
it was used in commission of driving on license that had been suspended due
to DUI, Department of Safety and Homeland Security (Department) sent
notice on 8/1/16 to petitioner via certified mail to address listed on motor
vehicle check, envelope containing notice was delivered to address and
certified mail return receipt was signed for by property manager for
apartment building where petitioner resides, property manager delivered
letter only when she happened to encounter petitioner sometime during week
of 8/15/16, petitioners counsel sent letter to Department on 9/8/16
requesting hearing, Department summarily rejected petition for hearing as
untimely, Department entered final order forfeiting property on 10/12/16,
petitioners request for stay of enforcement and/or reconsideration was
denied, and petitioner seeks judicial review, petitioners claim was timely
when he filed claim within 30 days of actually receiving notice; Department
argued that using date of actual receipt of notice for triggering filing
deadline is unworkable, but analysis in Ally Financial v. Tennessee
Department of Safety & Homeland Security, 42 TAM 27-18 (Tenn.App.
2017), of TCA 40-33-205(a) dictates result of using date of actual receipt
where petitioner filed claim promptly upon receiving actual notice, and
Department had no evidence to present to rebut affidavit of facts concerning
date of actual receipt by petitioner. Hollyfield v. Tennessee Department of
Safety & Homeland Security, 8/9/17, Davidson Chancery, Lyle, 22 pages.

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: When worker worked for Enamorado for


several months, Enamorado, presumably acting on advice of insurance firms
principal, phoned worker from insurers office to discuss effect of worker
declining to purchase workers compensation policy on himself but opting
instead for Workers Compensation Exemption Registry, insurers staff spoke
about form in Spanish, worker contends he did not consent to anyone
signing form on his behalf, worker texted information for application to
Enamorado, who retrieved photo containing workers Individual Taxpayer
Identification Number, member of insurers staff used information to
complete application electronically, resulting Acknowledgment lists worker as
active Registry member as of 2/24/16, it lists business name as Juan
Carlos Armes, and assigns construction services provider registration
number, worker was injured on 5/4/16 while working on home construction
project, and Enamorado asserted Exemption Registry defense, worker was not
proper candidate for Registry when he was not working in affiliation with any
business entity as officer or partner and was not sole proprietor, he was
Enamarados employee, he testified to seven years of landscape work before
starting work for Enamorado to gain carpentry skills, he considered himself
employee, Enamorado never elicited testimony from worker to suggest that
he owns or operates business, and only assets of any purported business are
workers tools; submission of Registry application was attempt to avoid
application of Workers Compensation Law to worker; evidence supports
holding that worker was Enamorados employee, rather than independent
contractor. Armas v. Enamorado, 8/22/17, Nashville, Switzer, 9 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1891&context=utk_workerscomp

WORKERS COMPENSATION: When employee, automotive mechanic,


injured his left shoulder while lifting large trailer wheel at work on 3/16/17,
between 3/22/17 and 4/20/17, employee received temporary restrictions,
including limiting use of his left arm, employer accommodated employees
restrictions for three weeks, employee testified that he arrived at work
following authorized medical appointment on 4/14/17 and manager told him
he was being written up as no call, no show, later that afternoon, manager
told employee to perform 30-point inspection and brake job, only other
employee was out to lunch, so employee was unable to remove wheels
without violating his restrictions, employee asked manager for help, but
manager said he was busy, employee told manager he could not do
assignment without help, manager called owner who came to shop and told
employee if he would not do job, he needed to leave, employee stated that he
took car for drive, first step in process, when employee brought car back, it
was necessary to raise car little by hand to slide lift arms under it and it was
impossible using just one hand, and employer terminated employee for
insubordination, evidence preponderates against owners contention that
help was available to employee to perform inspection and brake job;
employer terminated employee for refusing to perform work outside his
restrictions, employees conduct did not involve misconduct, employee did
nothing more than refuse to perform task that employer admitted he could
not perform without violating his restrictions, and hence, employee appears
likely to prove he is entitled to temporary permanent disability benefits from
4/15/17, day after his termination, through 8/2/17, day before surgery.
Barlow v. Car People LLC, 8/23/17, Murfreesboro, Tipps, 9 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1892&context=utk_workerscomp
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may also view and download the full text of any state appellate court
decision by accessing the states web site by clicking here:
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