TAM-BYTES

February 27, 2017

Vol. 20, No. 9

TAM Webinars

Trust Instead of A Will? The Crucial Client Counsel Update for

Tennessee Attorneys, 60-minute webinar presented by David Heller,
with Martin, Heller, Potempa & Sheppard, LLC in Nashville, on
Wednesday, April 19, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/trusts-041917 or call us
at (800) 727-5257.

Email, Social Media, Texts, and Video: How to Find and Use
Electronic Evidence to Win Your Case, 60-minute webinar presented by
Russell Taber, with Riley, Warnock & Jacobson, PLC in Nashville, on
Thursday, April 20, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
For more information, visit: www.mleesmith.com/social-042017 or call us
at (800) 727-5257.

Medicare Secondary Payer Act: What Attorneys Must Know, 90-

minute webinar presented by Bryan Moseley, with Moseley & Moseley in
Murfreesboro, on Thursday, April 27, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1.5 hours of GENERAL credit
For more information, visit: http://www.mleesmith.com/medicare-042717
or call us at (800) 727-5257.

2017 Tennessee Child Support Update: New Cases, Rules, and

Definitions of Underemployment, 60-minute webinar presented by
Melody Luhn, with Norton & Luhn, P.C., in Knoxville, on Thursday,
May 4, at 10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1.5 hours of GENERAL credit
For more information, visit: http://www.mleesmith.com/child-support-050417
or call us at (800) 727-5257.
 On-Site Event

10th annual
Medical Malpractice Conference for Tennessee Attorneys
*(now expanded to 2 Days)*

WHEN: Thursday & Friday, May 4-5

WHERE: Nashville School of Law
CLE: Earn 15 hours of CLE 12 hours of GENERAL and 3 hours of DUAL

SPEAKERS: Judge Tom Brothers, Davidson County Circuit Court; Judge Jeff
Hollingsworth, Hamilton County Circuit Court; Brandon Bass, Law Offices of John Day
PC, Brentwood; William L. Bomar, Glankler Brown, PLLC, Memphis; Charles Higgins,
Burch, Porter & Johnson, PLLC, Memphis; Clint Kelly, The Kelly Firm, Hendersonville
Randy Kinnard, Kinnard Clayton & Beveridge, Nashville; Wendy Longmire, Ortale
Kelley, Nashville; James E. Looper, Jr., Hall Booth Smith, P.C., Nashville; Marty
Phillips, Rainey, Kizer, Reviere & Bell, PLC, Jackson; Chris Tardio, Gideon, Cooper &
Essary PLC, Nashville; and Joshua Walker, Associate General Counsel, University of
Tennessee, Knoxville

HIGHLIGHTS: Pre-suit notice and certificate of good faith requirements; review of

causation issues; medical battery and informed consent; choosing and using expert
witnesses; using medical records when examining witnesses; deposition strategies to help
you win at trial; voir dire and jury selection strategies; using technology in the courtroom;
dos and donts from a trial judge; review of recent healthcare liability appellate court
decisions; panel discussions of hot topics in healthcare liability actions; ethical issues
in dealing with medical records; and ethical issues arising during settlement negotiations.

PRICING: $497 (full program) ($427 for any additional attendees from same firm)
*Take $50 off of full program until March 24 (early bird discount)*
$347 (one day only choose either Thursday or Friday)

*You may choose to attend both days or only one day whatever fits your schedule!
For more information, visit www.mleesmith.com/tn-med-mal-2017 or call (800) 727-5257.

3rd annual
Tennessee Business Law Conference
WHEN: Friday, May 19
WHERE: Nashville School of Law
CLE: Earn 7.5 hours of CLE 6.5 hours of GENERAL and 1 hour of DUAL
SPEAKERS: Alexander J. Davie, Riggs Davie PLC, Nashville; Charles G. (Chuck)
Fisher, VI, Grant, Kovalinka & Harrison, P.C., Chattanooga; Kelly Frey, Frost Brown Todd
LLC, Nashville; Michael Goode, Stites & Harbison, PLLC, Nashville; Justin Joy, Lewis,
Thomason, King, Krieg & Waldrop, P.C., Memphis; Ralph Levy, Jr., Dickinson Wright
PLLC, Nashville; Chancellor Ellen Hobbs Lyle, Davidson County Chancery Court/Business
Court; and Matthew Lyon, Lincoln Memorial University, Duncan School of Law, Knoxville

HIGHLIGHTS: Overview of the Tennessee Business Court Pilot Project; choosing the
right business entity to match your clients needs; mistakes to avoid in drafting LLC
operating agreements; drafting and negotiating business contracts, including
representations, warranties and indemnification; advantages and drawbacks of using a
Series LLC; tax consequences of limited liability company mergers, conversions, and
reorganizations; overview of the cyber threat landscape for businesses; new options for
raising capital for small companies; and corporate compliance and ethics identifying
and managing common business risks.

PRICING: $377 (full program) ($297 for any additional attendees from same firm)
*Take $50 off until April 7 (early bird discount)*

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

IN THIS WEEKS TAM-Bytes

Court of Appeals, in case in which mother filed petition to modify

agreed order granting custody of her two children to their maternal
grandparents, says that although trial court erred in holding that
doctrine of superior parental rights applied, trial court correctly found
that material change in circumstances had occurred, making change in
custody to mother from grandparents in childrens best interest;
Court of Appeals, in issue of first impression, rules trial court retains
jurisdiction to extend and modify previously entered protective order under
TRCP 26.03 notwithstanding voluntary dismissal of underlying action;
Court of Criminal Appeals rules state was not required to make election
of offenses as there was only one aggravated assault when defendants
actions occurred in such close temporal and geographic proximity that
they constituted one act of aggravated assault; and
Sixth Circuit rules 11 USC 511(a) that sets 12% interest rate, without
added 6% penalty, governs interest rate Metro Nashville can charge
for overdue property taxes in bankruptcy case.
WORKERS COMP APPEALS BOARD

WORKERS COMPENSATION: When Petition for Benefit

Determination had significant defect when form, as filed in trial court, was
missing key information due to technical problems apparently caused by
employees typing beyond printable lines on form itself, trial court
considered information in record outside of information in petition as trial
court concluded that employee asserted he fell from a rooftop while
working for [employer] and that employee filed the appropriate
documentation with the Bureau and the Court to assert that claim; having
considered matters that were outside pleadings, trial court was required to
treat employers motion as one for summary judgment in accordance with
TRCP 56, but failed to do so; error was harmless because employers motion
did not comply with TRCP 56, which requires that such motions shall be
accompanied by a separate concise statement of the material facts as to
which the moving party contends there is no genuine issue for trial. Palmer
v. Hardy, 2/23/17, Hensley, 16 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1730&context=utk_workerscomp

COURT OF APPEALS

TORTS: In suit by patient who experienced variety of medical conditions

that required treatment (and died while trial was pending of unrelated cause),
at end of plaintiffs case in chief, trial court granted defendant hospitals
motion for directed verdict on all issues except for informed consent and
medical battery, both sides concluded their proof, hospital renewed its
request for directed verdict, plaintiff moved for directed verdict on issues of
informed consent and medical battery, trial court denied both motions, and
jury returned verdict for hospital, trial court did not err in refusing to grant
plaintiff directed verdict on medical battery when jury could reasonably find
that patient was aware of hybrid nature of her bypass surgery and that she
authorized procedure; trial court did not err in denying plaintiffs motion for
directed verdict on informed consent claim when, taking strongest legitimate
view of evidence in hospitals favor, and disregarding all countervailing
evidence, jury could reasonably find that plaintiff had enough information to
make informed decision about her treatment. Bogner v. Vanderbilt
University, 2/23/17, Nashville, McBrayer, 16 pages.
http://www.tncourts.gov/sites/default/files/bogner.james_.opn_.pdf
WORKERS COMPENSATION: When plaintiff, who had worked for
railroad for 39 years, filed negligence action in 6/10 pursuant to Federal
Employer Liability Act alleging that he suffered bilateral rotator cuff tears as
result of railroads negligence in failing to provide him with proper
equipment while he worked as foreman flagman from 1/07 through 3/09,
trial court erred in granting summary judgment to railroad based on liability
when plaintiff presented competent evidence to create genuine issue of
material fact as to whether railroad negligently provided inadequate
instructions, procedures, and tools for task of erecting track flags such that
railroads negligence was at least partial cause of plaintiffs bilateral rotator
cuff injuries; trial court did not err by denying railroads motion for
summary judgment based on statute of limitation when genuine issue of
material fact remains as to whether plaintiff knew or should have known
prior to 6/21/07 that his bilateral rotator cuff injury was related to his
employment with railroad. McBee v. CSX Transportation Inc., 2/24/17,
Jackson, Frierson, 36 pages.
http://www.tncourts.gov/sites/default/files/mcbeebobbyopn.pdf

ESTATES & TRUSTS: Material evidence supported jurys finding that

testatrix had requisite testamentary intent to dispose of her property in manner
set forth by her 1998 will when language of will reflected clear intention to
dispose of testatrixs property after her death; material evidence supported
jurys verdict upholding validity of 1998 will when executor presented
evidence that will was executed in compliance with all of requisite legal
formalities, Ms. Kelley testified that Mr. Kelly, attorney who drafted will, was
not available to testify in light of his declining health but identified his
signature on will as subscribing witness, Steele identified her signature on will
as subscribing witness, Murphy identified her signature on attached affidavit
as notary, Ms. Kelly, Steele, and Murphy each testified regarding Mr. Kellys
procedures when drafting will for client, and each explained that Mr. Kelly
always met with client first, alone in his office, to discuss clients intention,
and Mr. Kellys handwritten notes reflect that he met with testatrix alone
several days before she executed will and that she was well aware of what
she wanted to do. In re Estate of Link, 2/22/17, Nashville, Goldin, 33 pages.
http://www.tncourts.gov/sites/default/files/inreestateofgetrudelink.opn_.pdf

ESTATES & TRUSTS: When will contained residuary clause that devised
two-fifths of residue of testatrixs estate to testatrixs sister, will contained
separate provision that permitted testatrixs nephews to purchase her
residence, will provided that, in event nephews elected to purchase property,
they would pay testatrixs niece amount that would make her share of estate
equal to theirs, nephews expressed their intent to purchase residence, and
sister brought action seeking declaration that she has two-fifths interest in
residence property, trial court properly ruled that will provision was
unambiguous, and hence, that sister had no interest in residence property; as
written, there is unambiguous intention for nephews and niece to share value
of residence property equally if it stays in family; it must be presumed that
absence of any language entitling sister to share indicates that testatrix
intentionally excluded her from share of property; residence property was
not part of residuary estate but was specifically devised otherwise. In re
Estate of Christian, 2/24/17, Knoxville, Susano, 7 pages.
http://www.tncourts.gov/sites/default/files/in_re_estate_of_sandra_christian_opn.pdf

FAMILY LAW: In case in which mother filed petition to modify agreed

order granting custody of her two children to their maternal grandparents,
evidence did not preponderate against trial courts finding that mother
demonstrated material change in circumstance sufficient to warrant change
of custody of two children to mother from grandparents; although trial court
erred in holding that doctrine of superior parental rights applied parent is
generally not entitled to invoke doctrine of superior parental rights when
seeking to modify valid order placing custody with non-parent, and in such
cases, trial courts apply standard typically applied in parent-vs-parent
modification cases, i.e., that material change in circumstances has occurred,
which makes change in custody in childs best interest mother presented
evidence that grandparents interfered with her relationship with children,
that grandparents failed to promote loving and nurturing relationship
between mother and children, and that grandparents have experienced
financial instability in that grandfather admitted to filing for bankruptcy on
several occasions, to writing bad checks, and to often being unable to pay his
utility bills; evidence supported trial courts determination that it was in best
interest of children to award mother custody when mother had matured, she
was gainfully employed, she had demonstrated that she was ready to be
mother, and she and her husband had developed strong bond with children
and had established home suitable for raising them. Holley v. Ortiz, 2/24/17,
Nashville, McBrayer, 15 pages.
http://www.tncourts.gov/sites/default/files/holley.m.opn_.pdf

CIVIL PROCEDURE: When trial court entered protective order under

TRCP 26.03 while case was ongoing, after plaintiff filed notice of voluntary
dismissal, trial court entered order confirming dismissal and extending
protective order in perpetuity, defendant did not appeal final order, but
years later filed motion to modify protective order, trial court had subject
matter jurisdiction to extend protective order after plaintiff nonsuited case;
protective orders may be extended even after dismissal of underlying
actions; policy underlying protective orders is furthered by allowing such
protection to extend beyond conclusion of case, regardless of form that
dismissal takes; trial courts power to modify protective order extends for
life of protective order; when trial courts orders are subject to modification
and party establishes change in circumstances sufficient to support
modification, doctrine of res judicata will not serve as bar to modification.
Autin v. Goetz, 2/22/17, Jackson, Stafford, 26 pages.
http://www.tncourts.gov/sites/default/files/autindopn.pdf

CIVIL PROCEDURE: When plaintiff Larry Patton owned interest in

property as of 2010, his interest was recorded in 2012, in 5/13, trial court
declared 6/23/09 deed forgery, throughout this period, Larry Patton was aware
of defendants allegedly negligent actions in connection with recording of
forged deed, Larry Patton was not legally disabled from filing suit against
defendants while he waited for notice that registers office had updated its
records to fully strike forged deed to Harris, and at latest in 5/13, Larry Patton
knew, or in exercise of reasonable diligence should have known, that
actionable injury had occurred, and his 10/8/14 complaint against several
defendants pursuant to Governmental Tort Liability Act (GTLA) due to
recording of forged deed in 2009 was barred by GTLAs one-year statute of
limitation; evidence did not demonstrate that plaintiff Mildred Patton, Larry
Pattons mother, is or has been incapable of attending to business or unable to
manage her day-to-day affairs such that statute of limitation would be tolled
when Mildred Patton was in good health when forgery occurred and knew
what had occurred and took steps to rectify situation, vague statement that her
health started going down fast is not sufficient to create genuine issue of
material fact considering that Mildred Patton continued to represent herself
pro se in two lawsuits, routinely signing and submitting motions, affidavit,
and even her pro se brief in this appeal, plaintiffs brief on appeal mentions
that Mildred Patton gave Larry Patton power of attorney in 2008, but this fact
was not presented to trial judge and, in any event, would not, by itself,
establish that Mildred Paton was incompetent. Patton v. Shelby County
Government, 2/23/17, Jackson, Gibson, 13 pages.
http://www.tncourts.gov/sites/default/files/pattonlarryopn.pdf

GOVERNMENT: In case in which plaintiffs, property owners in South

Cordova, area which had been annexed by City of Memphis (City), filed suit
arguing that City had no authority to assess property taxes in area for 2012
because its annexation of area took effect after 1/1/12, because annexation of
South Cordova by City took effect on 7/29/11 31 days after final judgment
was entered by trial court on plaintiffs suit it was entitled to collect
property taxes from newly annexed area for 2012; once annexation takes
effect, municipality may only contract its boundaries by ordinance or
referendum vote pursuant to TCA 6-51-201, and hence, Citys failure to
provide municipal services to residents of South Cordova until 7/1/12 did
not alter or delay effective date of annexation. OShields v. City of
Memphis, 2/23/17, Jackson, Goldin, 8 pages.
http://www.tncourts.gov/sites/default/files/oshieldsjosephopn.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL LAW: Trial court erred by failing to merge defendants two

aggravated assault convictions given fact that aggravated assault involving
use or display of deadly weapon and aggravated assault based on violation
of court order are two ways to commit the same offense of aggravated
assault; state was not required to make election of offenses as there was
only one aggravated assault when defendants actions he repeatedly
punched and choked victim until she punched him in face, he then
threatened to kill victim if he could not find his marijuana and exited room,
and he returned moments later and struck victim on head with revolver
occurred in such close temporal and geographic proximity that they
constitute one act of aggravated assault. State v. Anderson, 2/17/17,
Jackson, Thomas, 9 pages.
http://www.tncourts.gov/sites/default/files/andersondoyanopn.pdf

EVIDENCE: In case in which defendant was convicted of attempted rape of

child, two counts of aggravated sexual battery, and child abuse in connection
with crimes he committed against two victims, trial judge did not err in
refusing to permit Cain, employee of Department of Childrens Services, to
testify regarding note she had written which stated that one of victims
(Victim 1) had manifested behavioral issues, including lying, when trial
court found that Cain, who testified that she only had brief interaction with
Victim 1 and that she did not have any personal experience which would
indicate that Victim 1 was lying, could not properly give opinion as to
Victim 1s character for truthfulness; trial court also properly rejected
possibility that Cains testimony could come in as reputation testimony
when Cain had spoken to very limited number of people in community, that
she was not somebody from Victim 1s neighborhood, and that she had not
otherwise testified that she knew Victim 1 by reputation; trial court did not
apply incorrect legal standard when it concluded that character evidence was
not admissible under TRE 608(a). State v. Banks, 2/24/17, Jackson,
Williams, 13 pages.
http://www.tncourts.gov/sites/default/files/banksdavidopn.pdf

CRIMINAL SENTENCING: In case in which defendant pled guilty to

making false entry on election document defendant, who was completing
term as county commissioner for Shelby County at time of offense, listed
incorrect address on document related to her bid for position of Shelby
County Juvenile Court Clerk and trial judge denied her request for judicial
diversion and instead sentenced her to two years of probation, trial judge
improperly relied on evidence outside record in reaching its sentencing
decision; because trial judges sentencing determinations appear to have
been at least in part made by consulting judges own memory of television
news accounts of confrontation at county commission meeting at which
defendant apparently launched into tirade against Hispanic man regarding
his eligibility to bid on minority contracts and another incident in which
defendant was accused of assault and because trial judges determinations
regarding defendants mental health were based on speculation rather than
evidence presented at hearing, trial courts denial of diversion is reversed,
and case is remanded for new sentencing hearing; while defendant is not
required to admit guilt with respect to crime in order to qualify for diversion,
failure to admit any wrongdoing or accept any responsibility is relevant
consideration to denial of diversion. State v. Brooks, 2/27/17, Jackson,
Williams, 26 pages.
http://www.tncourts.gov/sites/default/files/brookshenriopn.pdf

CRIMINAL SENTENCING: Trial judge did not abuse discretion in

revoking defendants community corrections sentence when detective
confirmed that defendant was arrested on new charges, i.e., aggravated
assault and public intoxication, and although public intoxication charge was
apparently dismissed prior to revocation hearing, detective testified that
when she arrived on scene, all of occupants in apartment appeared
intoxicated, and trial court clearly accredited testimony of detective that
defendant was intoxicated when detective arrived on scene and was arrested
based on his actions; revocation of probation may be based on criminal
conduct that is basis of pending charges so long as state offers proof by
preponderance of evidence showing that defendant violated law. State v.
Sherrod, 2/22/17, Nashville, Easter, 7 pages.
http://www.tncourts.gov/sites/default/files/sherrod_opinion.pdf
SIXTH CIRCUIT COURT OF APPEALS

COMMERCIAL LAW: When bankruptcy debtor filed Chapter 13 plan

providing for 12% interest on overdue property taxes to which Metro Nashville
objected, arguing that Tennessee law specifies 18% interest, bankruptcy court
did not err in approving plan; TCA 67-5-2010 is not applicable
nonbankruptcy law as that term is used in 11 USC 511(a) because law is
targeted at bankruptcy proceedings, not law of general applicability; 11 USC
511(a) that sets 12% interest rate without added 6% penalty therefore
governs interest rate Metro Nashville can charge for overdue property taxes in
bankruptcy case. In re Corrin, 2/23/17, Stranch, 8 pages, Pub.
http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0044p-06.pdf

CRIMINAL PROCEDURE: In habeas corpus proceeding involving petitioner

who was convicted of felony murder and sentenced to death in state court, state
violated petitioners rights under Brady when it suppressed evidence that key
witness against him had been paid $750 by FBI prior to trial; prosecutor had
duty to disclose this payment rather than allow witness to commit perjury by
denying its existence; Brady claim entitles petitioner to relief from his
Tennessee state court conviction under 28 USC 2254, and case is remanded to
district court with directions to issue writ of habeas corpus unless state affords
petitioner new trial within period of time to be established. Thomas v.
Westbrooks, 2/24/17, Merritt, dissent by Siler, 15 pages, Pub.
http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0045p-06.pdf

CRIMINAL PROCEDURE: In this companion case to Thomas v.

Westbrooks, supra., which addresses petitioners habeas corpus petition for
relief from his state court conviction and sentence of death, Brady claim fails
in federal case due to sequence of trial Brady violation in state case, that
government did not disclose that witness had received compensation after
her federal testimony, occurred after conclusion of petitioners federal trial.
Thomas v. United States, 2/24/17, Merritt, 12 pages, Pub.
http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0046p-06.pdf

TRIAL COURTS

COMMERCIAL LAW: When corporations Board of Directors passed

Resolution that if corporation or substantial amount of its assets was sold,
Board would be authorized to review, approve, and execute documents to
pay $896,000 to fund corporations Top Hat Plan (Plan) ERISA retirement
plan for upper level management or highly-compensated employees and
five shareholders (plaintiffs) holding minority interest filed suit on behalf of
corporation seeking to find Resolution to fund Plan was ineffective as
conflict of interest transaction, that corporation has obligation to terminate
Plan, and that corporation has misconstrued and misapplied terms of Plan,
plaintiffs derivative claims and temporary and permanent injunctive relief it
seeks to declare Resolution ineffective withstand summary judgment; with
respect to plaintiffs claims seeking relief of termination of Plan, defendants
motion for summary judgment is granted; defendants claim that Board had
no choice but to adopt Resolution to take action to fund Plan because
Tennessee law so requires is denied as record does not establish that
adoption of Resolution under TCA 48-24-109 was required and record
establishes that adoption of Resolution was premature; plaintiffs claims
regarding construction of Plan are preempted by federal law. Weedman v.
Sanders Manufacturing Co., 2/2/17, Lyle, 36 pages.
https://www.tncourts.gov/node/4721943

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: Employers notice defense failed when

employee began suffering symptoms of bilateral carpal tunnel syndrome
(CTS) month or month and half after he began working for employer in 6/15,
he continued to perform his normal work activities despite suffering pain from
condition, it was not until 3/16 that employee learned he would be unable to
work for extended period of time while he recovered, employee notified
employer on 3/15/16, 11 days after his surgery, that he needed to take time
off, employer, at that time, offered employee panel of physicians, and hence,
employer had notice of employees bilateral CTS condition and its potential
causal relationship to work within 30 days of condition rendering him unable
to perform his normal work activities; when only causation opinion was from
Dr. Coogan, who stated that employees work for employer moving pallets of
packaged food certainly sounds like it could be a significant contributor to
his current complaints, Coogans opinion was speculative and insufficient to
overcome presumption of correctness attached to opinion of Dr. Salyers, panel
physician who stated with greater than 51% reasonable degree of medical
certainty that CTS would not develop in two to three months that employee
had worked for employer doing his particular job. Odem v. Tyson Foods,
11/29/16, Nashville, Baker, 10 pages.
http://trace.tennessee.edu/utk_workerscomp/633
WORKERS COMPENSATION: When employee, who worked in car
manufacturers paint shop, claimed cumulative injurious effect of his work
caused injury when superimposed on his pre-existing arthritic conditions,
employee did not come forward with sufficient expert medical opinion to
establish he is likely to prevail at hearing on merits in showing he sustained
injury that arose primarily out of and in course and scope of his employment
with employer; opinion of Dr. Blake established only contributory and
temporal links between employees arthritic conditions and his work and did
not rebut opinion of panel physician that employees injury did not arise
primarily out of and in course and scope of employment; definitional
requirements of Workers Compensation Law mandate more than
contributory and temporal connection between injury and work to establish
compensability. Tusa v. Volkswagen Group of America, 11/29/16,
Chattanooga, Wyatt, 10 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1639&context=utk_workerscomp

WORKERS COMPENSATION: Employer is not liable to employee for

his 5% permanent medical impairment resulting from his pre-existing,
bilateral hearing loss; last injurious injury rule did not apply; rules
application should be applied on case-by-case basis; to hold employer liable
for known impairment that pre-existed employment would only serve to
discourage employer from hiring any person with known, ascertainable
impairment. Hanneken v. Consolidated Nuclear Services LLC, 11/30/16,
Knoxville, Johnson, 11 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1640&context=utk_workerscomp

WORKERS COMPENSATION: When employee, caregiver, claimed she

developed scabies on her hands, arms, fingers, and feet while caring for
employers client on or about 5/12/16, according to employee, her hands
began to itch in 4/16 after getting cat hair all over her at clients home, nurse
practitioner noted condition was work related, dermatologist opined that
humans have different species of scabies than cats and there was no clinical
evidence to suggest that cross contamination or infection occurs, employee
did not have lab diagnosis of scabies using skin scraping or biopsy to ensure
proper diagnosis, and dermatologist indicated that employee gave history of
working in home health and as manicurist, which could explain her
condition, employee is unlikely to prevail at hearing on merits on issue of
causation; dermatologist is more qualified expert in field of dermatologic
conditions, such as scabies, and he more completely and logically explained
his medical opinion. Holyfield v. Senior Helpers, 11/30/16, Memphis,
Umsted, 9 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1641&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