TAM-BYTES January 14, 2013 Vol. 16, No.

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2013 CLE CALENDAR

Audio Conferences
Tennessee Workers Compensation Update: Recent Cases and New Laws, 60-minute webinar presented by Fred Baker, with Wimberly Lawson Wright Daves & Jones PLLC, on Wednesday, February 27 at 2 p.m. (Central), 3 p.m. (Eastern). New Tax Law in Tennessee: How State and Federal Changes Affect Estate Planning, 60minute audio conference presented by Harlan Dodson with Dodson, Parker, Behm & Capparella PC, on Thursday, February 28 at 10 a.m. (Central), 11 a.m. (Eastern). For more information or to register for any of our CLE events, call (800) 274-6774 or visit us at www.mleesmith.com

Onsite Event
Medical Malpractice Conference for Tennessee Attorneys, to be held in
NASHVILLE on Friday, May 3. 7.5 hours of CLE, including 1 hour of DUAL CLE. Speakers: Judge Thomas W. Brothers, Brandon Bass, Rebecca Blair, Dixie Cooper, Brian Cummings, Hubert Jones, and Marty Phillips. For more information go to: www.mleesmith.com/tn-med-mal

IN THIS WEEKS TAM-Bytes * Supreme Court holds employers subrogation lien provided by TCA 50-6-112 does not include cost of future medical benefits that may be provided to injured employer; * Workers Comp Panel holds that employee, who missed few days of work following injury but prior to his reaching maximum medical improvement, collective bargaining agreement reduced hourly wages of all of employers production workers, had meaningful return to work, thereby limiting his award to 1.5 times his anatomical impairment; *Workers Comp Panel rejects employers contention that because employer offered employee full-time position at his previous position six months after employees job had been eliminated, employee was not entitled to seek reconsideration of previouslycapped award;

*Court of Appeals upholds one-year contractual limitations period in case in which plaintiff hired defendant to inspect house plaintiff wanted to purchase and, after plaintiff purchased house, he discovered problems with plumbing and floor support; * Court of Appeals says accounts opened with funds from one spouses separate property remain separate property even though opened during marriage; * Court of Appeals rules TCA 63-6-214(b)(1), which lists unprofessional, dishonorable or unethical conduct as ground for sanctioning physician, is not unconstitutionally vague; * Court of Criminal Appeals says although trial court has authority to permit crossexamination concerning witnesss prior mental instability, even when such instability occurred years in past, if trial court determines that probative value of that evidence exceeds its potential for prejudice, trial court does not violate constitutional norms by limiting scope of cross-examination; * Court of Criminal Appeals, in case in which defendant was convicted of promotion of methamphetamine manufacture, rules officers properly executed knock and talk at defendants door even though there was no pathway (only dirt road) from road to defendants building one-quarter mile from entrance to aunts property; and *In split decision, Court of Criminal Appeals rules post-conviction action does not lie when petitioners record has been expunged.

SUPREME COURT WORKERS COMPENSATION: Employers subrogation lien provided by TCA 50-6-112 does not include cost of future medical benefits that may be provided to injured employee. Cooper v. Logistics Insight Corp., 1/16/13, Nashville, Holder, dissent by Koch, 27 pages.
http://www.tncourts.gov/sites/default/files/cooperj_opn.pdf http://www.tncourts.gov/sites/default/files/cooperj_dis.pdf

PROFESSION OF LAW: New Section 4.07(d) of Supreme Court Rule 21 provides that Commission on Continuing Legal Education and Specialization may, in its discretion, award up to six hours per year of dual credit for participation as mentor or mentee in program meeting standards established by Commission; Paragraph (d) will take effect on 7/1/13 and expire on 12/31/14 unless affirmatively re-adopted by Supreme Court. In re Petition to Amend Rule 21, Section 4.07 (Mentoring Experiences), 1/11/13, Nashville, 13 pages.
https://www.tncourts.gov/sites/default/files/supreme_court_order_amending_supreme_court_rule_21_sec_4_07_-_0111-2013.pdf

WORKERS COMP PANEL WORKERS COMPENSATION: Evidence did not preponderate against trial courts finding that employee failed to carry burden of proof of causation in case in which trial court accredited testimony of Dr. Weinstein that he did not know exactly what caused employees death but that more likely than not, [employees work] activities did not cause his death. [His death] just happened over testimony of Dr. Saxton that employee had weak heart and that exertion from his work activities strained it, causing arrhythmia and death when Weinstein relied on absence of any reference in autopsy report to fluid in lungs and absence of any reference in records of emergency personnel of presence of pink frothy sputum in employees mouth or air passages, both conditions which would be expected if congestive heart failure had occurred. Read v. Hill Services Inc., 1/10/13, Jackson, Childress, 7 pages.
http://www.tncourts.gov/sites/default/files/readlopn.pdf

WORKERS COMPENSATION: Evidence did not preponderate against trial courts finding that employees injury was caused by his employment when two doctors testified that injuries ultimately diagnosed by orthopedic surgeon were consistent with use of arms in overhead or outstretched position, employee testified that his job included frequent overhead reaching, and there was no evidence contradicting employees description of his job or opinions of orthopedic surgeon and physiatrist as to causation of left shoulder injury; trial court correctly found that notice provided by employee in 5/08 and 6/09 satisfied statutory notice requirement, despite employers contention that employee did not advise employers health and safety manager that his symptoms had spread to his left shoulder by 6/09, as employee complies with statutory notice requirement if he or she notifies employer that accident occurred and that he suffered injury. Jordan v. Whirlpool/Jackson Dishwashing Products, 1/10/13, Jackson, Parish, 7 pages.
http://www.tncourts.gov/sites/default/files/jordanaopn.pdf

WORKERS COMPENSATION: When employee injured his right shoulder in course of his employment in 7/09, he missed only few days of work and reached maximum medical improvement in 8/10, and prior to employees reaching maximum medical improvement, collective bargaining agreement reduced hourly wages of all of employers production workers, trial court properly held that employee had meaningful return to work, thereby limiting his award of benefits to 1.5 times his anatomical impairment; as held in Robinson v. Bridgestone Americas Tire Operations LLC, 38 TAM 2-6 (WC 2012), legislature did not intend to grant windfall to employees who returned to work at their pre-injury wage and continue to work for their pre-injury employer, but who, at some later time, are affected by across-board

reduction of pay as part of employers even-handed attempts to address deteriorating market conditions. Young v. Bridgestone Americas Tire Operations LLC, 1/10/13, Nashville, Harris, 7 pages.
http://www.tncourts.gov/sites/default/files/young-bridgestone_opn__jo.pdf

WORKERS COMPENSATION: Trial court erred in awarding employee additional 50 weeks of temporary total disability benefits beginning on 10/15/10, date Dr. Scariano, neurologist from employers panel of doctors, released employee from his care, until 9/29/11, date employee last saw Dr. Stimpson, family practitioner, when evidence, primarily that offered by Stimpson, established that employee reached maximum recovery prior to his initial examination by Stimpson; evidence did not preponderate against trial courts findings that employer did not act reasonably in attempting to return employee to work, that employees decision not to return to work was reasonable, and hence, that employee did not have meaningful return to work when employees job, satellite dish installer position, required climbing ladders, working on roofs, and maneuvering in crawl spaces, and all of these activities would be difficult or dangerous for person with physical limitations of employee, i.e., inner ear dysfunction. Laurence v. Tower Insurance Co., 1/3/13, Knoxville, Wade, 13 pages.
http://www.tncourts.gov/sites/default/files/laurencerobertopn.pdf

WORKERS COMPENSATION: Evidence did not preponderate against trial courts finding that employees loss of employment gave rise to right of reconsideration of previously-capped award when form that employer gave employee indicated that employees job had been eliminated and that he could re-apply for any future job openings, nothing established that employees termination was anything other than permanent loss of employment, and employer offered to rehire employee part time two months later and full time four months after first offer at his previous position, which offers employee rejected. Flatt v. ERMC, 1/10/13, Jackson, Childress, 8 pages.
http://www.tncourts.gov/sites/default/files/flattopn.pdf

COURT OF APPEALS CONTRACTS: When plaintiff alleged that he hired defendant to perform inspection on house plaintiff wanted to purchase, that after defendant inspected house and reported house had no major problems, plaintiff purchased house in reliance on defendants report, plaintiff claimed that he then discovered multiple serious issues with house, including plumbing problems, insulation and heat pump problems, and inadequate floor support, and plaintiff filed suit 13 months after inspection was completed, trial court properly granted defendant summary judgment when contract required suit to be filed within one year of date of inspection; contract was not adhesion contract because it was

not shown that plaintiff had to take it or leave it or that he was forced to acquiesce to terms of agreement to get service he desired; language in contract is not unenforceable exculpatory clause, but is contractual limitations period, which Tennessee courts have repeatedly held enforceable so long as period is reasonable; one-year contractual limitations periods have been upheld in many instances and time period is not invalid simply because it commenced on date prior to plaintiff taking possession of house. Desgro v. Pack, 1/8/13, ES, McClarty, 7 pages.
http://www.tncourts.gov/sites/default/files/desgroopn.pdf

ESTATES & TRUSTS: Testatrixs will contained latent ambiguity because it devised road right-of-way and, as shown on survey, there were two potential road right-of-ways, and as such, trial court did not err in allowing parol evidence to explain latent ambiguity. In re Martin, 1/10/13, ES, Swiney, 7 pages.
http://www.tncourts.gov/sites/default/files/inrepaulinemartinopn.pdf

FAMILY LAW: Evidence did not preponderate against trial courts award to wife of $900 per month as alimony in futuro when husband had accumulated sizeable estate prior to marriage, chiefly through inheritance, trial court awarded wife $383,848 in marital assets which included $100,000 she had secretly and fraudulently taken from marital estate and subsequently squandered, along with two homes worth $207,300 and two cars worth $39,500, all of which were debt-free, and three certificates of deposit valued at $31,000 husband was awarded marital assets worth $257,206 but was awarded $685,100 as his separate property, and wifes extreme jealousy was major problem between parties; evidence did not preponderate against trial courts award to husband as his separate property annuity husband purchased during marriage from his separate assets when husband was always listed as owner of annuity, with wife as beneficiary, and record is devoid of any proof that wife substantially contributed to preservation or appreciation of annuity; accounts opened with funds from one spouses separate property remain separate property even though opened during marriage. Willocks v. Willocks, 1/10/13, ES, Cantrell, 6 pages.
http://www.tncourts.gov/sites/default/files/willockswopn.pdf

GOVERNMENT: In case in which physician was convicted of DUI in another state and was adjudged to have engaged in unprofessional, dishonorable or unethical conduct, as proscribed by TCA 63-6-214(b)(1), by Tennessee Board of Medical Examiners (Board), his medical license was placed on probation and he was ordered to obtain treatment and counseling, and chancery court held that statute was unconstitutionally vague and reversed Boards decision, TCA 63-6-214(b)(1) provides sufficient notice to physician that his conduct was subject to potential discipline by Board, and hence, statute is not unconstitutionally vague; because proceeding in question involves conviction of physician for offense not directly related to treatment he renders patients, no standard of medical care was required to be articulated by

Board and accordingly, trial court erred when it so held. Kleier v. Tennessee Board of Medical Examiners, 1/9/13, MS, Dinkins, 10 pages.
http://www.tncourts.gov/sites/default/files/kleier_v_med._examiners_opn.pdf

COURT OF CRIMINAL APPEALS EVIDENCE: In case in which defendant was convicted of two counts of sexual battery, trial judge did not err by limiting scope of defendants cross-examination of victim and by ruling that defendant could not cross-examine victim concerning her history of mental illness and her use of prescription medications; although trial court has authority to permit cross-examination concerning witnesss prior mental instability, even when such instability occurred years in past, if trial court determines that probative value of that evidence exceeds its potential for prejudice, trial court does not violate constitutional norms by limiting scope of cross-examination when potential of such evidence to mislead or confuse jury greatly exceeds its probative value or when consideration of other legally-relevant factors counsels against its admission. State v. Pullon, 1/4/13, Knoxville, Williams, 6 pages.
http://www.tncourts.gov/sites/default/files/pullonopn.pdf

CRIMINAL PROCEDURE: In case in which defendant was issued misdemeanor citations for DUI and reckless driving on 3/16/09, at his third court appearance on 7/13/09, he was taken into custody, and his bail was set by general sessions judge at $1,000, and defendant remained in jail for 24 hours prior to posting bond, trial judge did not err in denying defendants motion to dismiss indictment when defendant failed to prove that his pretrial detention was punitive rather than remedial detention that is remedial, rather than punitive, does not implicate Double Jeopardy Clause; defendants 24-hour detention, which followed immediate setting of his $1,000 bond after he was taken into custody, was not essential criminal proceeding intended to authorize criminal punishment to vindicate public justice; defendants detention served alternate purpose of assuring his presence in court proceedings in his case, and his detention was not excessive in relation to this alternative purpose. State v. Larsen, 1/9/13, Jackson, McMullen, 8 pages.
http://www.tncourts.gov/sites/default/files/larsennicholasopn-rehear_granted.pdf

CRIMINAL PROCEDURE: In case in which defendant was convicted of promotion of methamphetamine manufacture, trial judge properly denied defendants motion to suppress evidence seized during search of one-room dwelling used sporadically by defendant on property owned by his aunt building was located approximately onequarter of mile from entrance to his aunts property, and dirt road led from entrance of defendants aunts property to defendants building when defendant did not have standing to challenge police officers entry onto his aunts property; officers properly

executed knock and talk at defendants door even though there was no pathway from road to defendants building when validity of attempted knock and talk does not depend on existence of cobblestone pathway or set of ornate stepping stones leading from road directly to defendants front door, and given fact that knock and talk procedure is not limited only to buildings that police can reach by major public thoroughfares. State v. Robertson, 1/7/13, Nashville, Thomas, concurrence by Witt, 13 pages.
http://www.tncourts.gov/sites/default/files/robertsonlavonopn.pdf

CRIMINAL PROCEDURE: Post-conviction relief is not available from expunged record because there is no conviction to challenge. Rodriguez v. State, 1/7/13, Nashville, Williams, partial dissent by Tipton, 7 pages.
http://www.tncourts.gov/sites/default/files/rodriguezjopn3_final.pdf

REVENUE RULING TAXATION: Applicability of Tennessee sales and use tax to purchases of equipment by qualified farmer or nurseryman. Department of Revenue Letter Ruling 12-22, 10/17/12, 7 pages.
http://www.tn.gov/revenue/rulings/sales/12-22.pdf

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/