TAM-BYTES

October 13, 2014

Vol. 17, No. 41
2014 TAM CLE CALENDAR

Webinars
Marketing Solo and Small Law Firms Online: practical and Ethical Issues for
Attorneys, 60-minute audio conference presented by John Watts, Birmingham
attorney, on Wednesday, October 29, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

Streamlining Child Support Recovery: A Step-by-Step Process for
Tennessee Attorneys, 60-minute audio conference presented by Thomas J.
Dancison, Jr., Pulaski attorney, on Thursday, October 30, at 2 p.m.
(Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

Engaging Clients Online: Attorney Guidelines for Websites, Blogging,
and Social Media, 60-minute webinar presented by Vincent J. (V.J.)
Graffeo, Birmingham attorney, on Tuesday, November 4, at 2 p.m. (Central),
3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

Estate Planning in Tennessee: Protecting the Family Wealth, 60-minute
webinar presented by David Heller, Nashville attorney, on Wednesday,
November 5, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

For more information or to register, call (800) 727-5257 or visit us at www.mleesmith.com

On-Site Events
Law Conference for Tennessee Practitioners
Thursday & Friday, November 13-14
Marriott Franklin/Cool Springs

TOPI CS: Overview of the changes to the workers compensation law for
injuries occurring on or after July 1, 2014, as well as how claims will be
decided by the claims courts; compliance issues for attorneys subject to
HIPAA; latest developments in medical malpractice, including how the
appellate courts have ruled on compliance with the pre-suit notice and
certificate of good faith requirements; how to embrace your inner digital lawyer
and get up to date on issues such as mobile computing, file management, and
the risks of going mobile; what every litigator needs to know about business
entity laws in Tennessee; latest developments in the family law area; checklist
for provisions to be included in a will today; recent changes to the rules on
computer calls; how to use a little-known VA benefit to aid your clients;
overview of the administrative process in Tennessee from an experienced
chancellor; ins and outs of standards of review and the scope of the appellate
practice from an appellate court judge; tips from a chancellor on pretrial motion
practice; an insiders perspective from the Chief Disciplinary Counsel on the
Boards recent developments; how to avoid e-discovery ethical pitfalls and how
to handle social media, e-mail, video, and other electronically stored
information; and insight from a former trial judge and now special judge on
displaying professionalism in the practice of law.

FACULTY: Judge John McClarty, Court of Appeals, Eastern Section; Judge
Don R. Ash, Senior Judge, Tennessee Senior Judge Program; Chancellor Ellen
Hobbs Lyle, Chancery Court, Davidson County; Chancellor Carol McCoy,
Chancery Court, Davidson County; Fred Baker, Wimberly Lawson Wright
Daves & Jones PLLC; Harlan Dodson, Dodson Parker Behm and Capparella
PC; Sandy Garrett, Chief Disciplinary Counsel, Board of Professional
Responsibility; Randy L. Kinnard, Kinnard, Clayton & Beveridge; Kevin
Levine, DeSalvo & Levine PLLC; Helen S. Rogers, Rogers, Kamm & Shea;
Lucas R. Smith, Bass, Berry & Sims PLC; Richard Spore, Bass, Berry &
Sims PLC; Elizabeth Warren, Bass, Berry & Sims PLC; and John Watts,
Watts & Herring, LLC
*Earn up to 15 hours of CLE credit, including 3 hours of DUAL credit.

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Tennessee Workers Comp Conference
Thursday & Friday, November 20-21
Embassy Suites Nashville-South/Cool Springs

HI GHLI GHTS: Gain insight from new judges on the Court of Workers
Compensation Claims and the Workers Compensation Appeals Board; get
review of changes that took effect on July 1 -- including the new permanent
partial disability formula, the new standard developing medical proof regarding
causation, adjustments to physician panel process, and modification issues; gain
insight from Department of Labor and Workforce Development directors on
employee misclassification, new request for assistance process, and
ombudsman program; hear a doctors perspective on everyday pain
management of workers comp claims; the Attorney Track features an extended
session, along with a panel discussion, on how the new court system will work,
as well as a session on ethical issues arising under the new law; the Employer
Track covers issues such as the new procedure for obtaining medical records,
claims management, workers comp defenses, best practices for preventing
retaliatory discharge, issues that arise when employees are injured in transit,
and supervisor training in managing claims under the new law; and get a review
of the latest cases from the Tennessee Supreme Court and the Workers
Compensation Appeals Panels.

FACULTY: Judge Tim Conner, Workers Compensation Appeals Board
judge; Chief Judge Ken Switzer, chief judge of the Court of Workers
Compensation Claims; Judge Pam Johnson, Judge Allen Phillips, and Judge
Jim Umsted, of the Court of Workers Compensation Claims; Robert
Durham, Director of Benefit Review with the Department of Labor &
Workforce Development; Richard Murrell, Director of Quality Assurance
with the Department of Labor & Workforce Development; Scott Yarbrough,
Director of the Compliance Program at the Department of Labor & Workforce
Development; attorneys Mary Dee Allen, Fred Baker, Philip Baker, Leslie
Bishop, Kitty Boyte, Allison Cotton, John Dreiser, Jason Ensley, Pele
Godkin, Greg Grisham, Steve Karr, Mary Beth Maddox, Blake Matthews,
Julie Reasonover, and Kenny Veit, and Dr. Jeffrey Hazlewood, who
practices physical medicine and rehabilitation in both Lebanon and
Murfreesboro.
*Earn up to 13 hours of CLE credit, including 1 hour of DUAL credit.

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Family Law Conference for Tennessee Practitioners
Thursday & Friday, December 4-5
Nashville School of Law

TOPI CS: The Family Law Conference for Tennessee Practitioners packs two
days with judges and leading authorities delivering critical family law practice
guidance on the hottest topics and some of the most complex issues youll face,
including, the impact of current technology on divorce discovery, obtaining
restraining/protection orders in cases involving domestic violence, the standard
for changing custody, the effect of cohabitation on alimony, common
evidentiary issues in domestic relations litigation, relocation of the primary
residential parent, drafting tips for prenuptial agreements, agency and DCS
adoption issues, factors to consider in making an equitable division of a
marital estate, a wireless and paperless law office, imputing income to an
unemployed/underemployed parent, ethical considerations for family law
practitioners, and locating, valuing, and dividing assets.

FACULTY: Judge Mike Binkley, circuit court, 21
st
Judicial District; Judge
Robert L. Childers, Shelby County circuit court; Judge Jeff Hollingsworth,
Hamilton County circuit court; and Judge Phillip Robinson, Davidson County
circuit court; and attorneys, Amy J. Amundsen, Memphis; Rebecca Byrd,
Franklin; Dawn Coppock, Strawberry Plains; Lisa J. Hall, Knoxville; Larry
Hayes, Jr., Nashville; Sean Martin, Nashville; Kevin Shepherd, Maryville;
and Greg Smith, Nashville.
*Earn up to 13 hours of CLE credit, including 2 hours of DUAL credit.

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Tennessee Real Estate Law Conference
Friday, December 12
Nashville School of Law

TOPI CS: Learn about commercial development and financing in todays
economy; hear about pitfalls in foreclosure proceedings, loss mitigation
solutions, and effects of bankruptcy on foreclosure; get up to date on the new
title insurance endorsements that affect both residential and commercial real
estate law; learn about the impact of the ability-to-pay and mortgage servicing
rules that took effect on January 10; get tips on how to perfect and enforce liens
against real property; get refreshed on ethical concerns facing real estate
attorneys, such as conflict of interest and multiple representations; get up to
date on recent developments in the appellate courts and the legislature; and hear
about other hot topics that affect real estate practitioners in 2014 and beyond.

FACULTY: Kim A. Brown, Sherrard & Roe PLC; Joshua R. Denton, Gullett
Sanford Robinson & Martin PLLC; Robert C. Goodrich Jr., Stites &
Harbison, PLLC; Linda W. Knight, Gullett Sanford Robinson & Martin
PLLC; David Wilson Long, Long, Ragsdale & Waters, P.C.; Madison L.
Martin, Stites & Harbison PLLC; William L. (Billy) Rosenberg, First
American Title Insurance
*Earn up to 7.5 hours of CLE credit, including 1 hour of DUAL credit.

For more information or to register for any of TAMs CLE events, call (800) 727-5257 or
visit us at www.mleesmith.com


IN THIS WEEKS TAM-Bytes

Workers Comp Panel affirms award of permanent total disability to
employee who contracted farmers lung from exposure to grain dust
produced by grain facility adjacent to employers workplace;
Workers Comp Panel rules employees vested accrued sick leave was, in
effect, insurance policy that provided him continuation of his salary if he
became ill and was unable to work, and hence, pursuant to TCA 50-6-
128, employers knowing use of employees sick-leave benefit as
substitute for his workers compensation benefits prohibits it from
claiming offset of amounts it paid;
Court of Appeals invalidates section of Chattanooga ordinance
preventing any establishment in city remaining open for business of any
type between hours of 3 a.m. and 8 a.m. to simultaneously maintain beer
permit;
Court of Criminal Appeals finds insufficient probable cause to justify
issuance of search warrant when there was nothing in affidavit supporting
search warrant to support detectives statement that he had received
information that illegal narcotics were being sold at target residence;
Court of Criminal Appeals, in two DUI cases, reverses trial courts
finding that TCA 55-10-406(f)(2), mandatory blood draw statute, is
unconstitutional; and
Sixth Circuit, in 42 USC 1983 suit by six protesters associated with
Occupy Nashville demonstration who were arrested for violating 10
p.m. curfew adopted by state, rules state officials were protected by
qualified immunity because protesters claimed First Amendment right to
unrestricted 24-hour access to Plaza was not clearly established.


WORKERS COMP PANEL

WORKERS COMPENSATION: In case in which employee, while working
as forklift operator for employer, contracted lung condition caused by exposure
to grain dust produced by grain facility adjacent to employers workplace,
award of benefits is affirmed; TCA 50-6-301 does not require that exposure or
risk be related to substance that emanates from employer but does require
exposure or risk be connected to employment; although dust that caused
employee to contract farmers lung was not created by employer, it was
pervasively part of his work environment, and hence, consequences of his
exposure to that dust arose from his employment; evidence did not preponderate
against trial courts finding that employee is permanently and totally disabled
when employees entire work history consisted of relatively strenuous work,
such as operating boats, cranes, or forklift trucks, both employees and doctors
testimony were clear that employee will never be able to perform such jobs
again, employee must use oxygen therapy at all times, nothing suggests that he
obtained transferrable skills from tasks he performed on computer during
employment, and doctor testified that his lung condition is likely to worsen in
future. Plotner v. Metal Prep, 9/29/14, Jackson, Harris, 8 pages.
http://www.tncourts.gov/sites/default/files/plotneropn.pdf

WORKERS COMPENSATION: In case in which employee, over-road truck
driver, claimed that he suffered injury as result of fall on 1/7/09, evidence did
not preponderate against trial courts finding that employee had not sustained
compensable aggravation of her pre-existing arthritis when employee had end-
stage arthritis of both knees, knee replacement surgery had been recommended
to her as early as 2005, condition was not asymptomatic as she had received
medical treatment for it, employee testified that before 1/09 job task of
dropping and hooking caused her to have painful episodes that lasted several
days, two doctors opined that work accident caused only temporary
exacerbation of pre-existing arthritic condition, and third evaluating physician
testified that employees impairment was same before and after incident
according to lower extremity chapter of AMA Guides. Poindexter v. Roadway
Express, 9/29/14, Jackson, Harris, 7 pages.
http://www.tncourts.gov/sites/default/files/poindexteropn.pdf

WORKERS COMPENSATION: In case in which employee fell at her place
of employment and reported pain in her right shoulder and hip, she was treated
and released by her authorized physician, she developed left knee pain
approximately five months after fall, she developed pain in her left hip and
lower back five more months later, employees knee and back conditions
ultimately required surgery, but her employer denied that fall at work caused
her conditions, evidence did not preponderate against trial courts finding that
employees left knee injury was work-related when plaintiff testified that she
began limping at work following fall; evidence preponderated against trial
courts finding that employee sustained permanent, work-related injuries to her
spine when trial court accredited testimony of employees treating physician
that L1-L2 herniation was not work-related and that fall at work did not cause
any permanent injury to employees spine. Ball v. Regions Financial Corp.,
10/2/14, Jackson, Blackwood, 12 pages.
http://www.tncourts.gov/sites/default/files/ballopn.pdf

WORKERS COMPENSATION: When employee developed carpal tunnel
syndrome while working as welder and supervisor for employer, prior to
receiving medical treatment and unrelated to injury, employer gave employee
choice to retire or potentially lose his substantial pension, and employee agreed
to lump-sum retirement benefit, evidence did not preponderate against trial
courts conclusion that employees retirement was reasonably related to his
workplace injuries, and hence, trial court did not err in awarding permanent
partial disability benefits in excess of 1.5 times employees medical impairment
rating, when employee, because of his hand pain, was unsure whether he could
continue his work activities, he was also uncertain that employer would provide
medical care for his injuries or if care he received would allow him to continue
working, and with end of year deadline looming, employee was also faced with
decision of whether to retire and receive lump-sum payment or remain and
receive monthly benefits only in distant future, if at all. Dana Automotive
Systems Group LLC v. Evans, 10/2/14, Jackson, Daniel, 9 pages.
http://www.tncourts.gov/sites/default/files/danaautoopn.pdf

WORKERS COMPENSATION: Evidence did not preponderate against trial
courts finding that employee, who claimed that he suffered injury to his left
shoulder and knee from fall at work, failed to satisfy statutory notice
requirement when employer did not have actual knowledge of nature of injury
or its cause, delayed notice did not prejudice employer, and employee presented
no excuse for failing to give proper notice to employer; employees general
assertion of his unfamiliarity with workers compensation law and his
ignorance of his obligations thereunder, without any further explanation for his
delay in notifying employer of his injury, is insufficient and not reasonable
basis for excusing his failure to give required notice. Mosby v. McDowell
Center for Children, 10/2/14, Nashville, Summers, 11 pages.
http://www.tncourts.gov/sites/default/files/mosbyopn.pdf

WORKERS COMPENSATION: In case in which employee, insurance
adjuster, was injured when he fell from ladder after inspecting roof for
employer, consistent with voluntary agreement with employer, employee
received sick leave payments in lieu of temporary total disability payments,
employee retired after returning to work for two months, trial court erred by
adopting impairment rating other than that assigned by MIR physician; doctors
note that did not address MIR physicians method or interpretation of AMA
Guides, standing alone, was insufficient to overcome statutory presumption of
accurate impairment rating; employees vested accrued sick leave was, in
effect, insurance policy that provided him continuation of his salary if he
became ill and was unable to work, and hence, pursuant to TCA 50-6-128,
employers knowing use of employees sick-leave benefit as substitute for his
workers compensation benefits prohibits it from claiming offset of amounts it
paid; employee could have cashed in his sick leave benefits at time of his
retirement, but instead, carrier used those benefits to replace its obligations
under workers compensation statute; agreement between employee and carrier
violates public policy, and trial court erred in awarding employer setoff. Kyle v.
State Farm Fire & Casualty Co., 10/2/14, Jackson, Harris, 12 pages.
http://www.tncourts.gov/sites/default/files/kyleopn.pdf
COURT OF APPEALS

FAMILY LAW: Trial court did not err in granting mothers request to relocate
to Alabama with parties child when move would allow mother to join
stepfather, to whom she had been married for approximately one year, in
Alabama, stepfather was in military and his relocation to Alabama would allow
him to remain home with his family without possibility of future deployments,
and child, who was five years old and had spent more time with mother than
father, was capable of easily adjusting to new surroundings. Lower v. Lower,
10/8/14, WS at Nashville, McClarty, 8 pages.
http://www.tncourts.gov/sites/default/files/lowerr.opn_.pdf

FAMILY LAW: Evidence did not preponderate against trial courts decision to
convert temporary restraining order into permanent injunction enjoining father
from (1) discussing issues concerning divorce or post-divorce proceedings with
children, (2) exiting his vehicle or house during exchanges of children, and (3)
communicating with mother via email except on certain topics and under
certain conditions; evidence preponderated against trial courts finding father
guilty of one count of civil contempt for failing to pay some of childrens
school, medical, extracurricular, and summer camp expenses when provision in
final divorce decree requiring father to pay certain non-school-related expenses
incurred on behalf of children was susceptible to more than one reasonable
interpretation. Duke v. Duke, 10/3/14, MS, McBrayer, 54 pages.
http://www.tncourts.gov/sites/default/files/duke.corr_.opn_.pdf

CIVIL PROCEDURE: Trial court did not comply with TRCP 56.04 when
order did not state legal grounds for grant of summary judgment and when trial
court did not recite any evidence or argument it considered in making decision
to grant summary judgment; judgment involves questions of law that require
analysis and explanation, and appellate court cannot proceed with review,
speculating on legal theories upon which trial court may have ruled and legal
conclusions trial court may have made; order granting partial summary
judgment is vacated, and case is remanded for further proceedings. Potters
Shopping Center I nc. v. Szekely, 10/8/14, WS at Nashville, Gibson, 7 pages.
http://www.tncourts.gov/sites/default/files/pottersshoppingv.szekelyjosephopn.pdf

GOVERNMENT: In 6/06, City of Chattanooga (City) amended its beer
ordinance (subsection 5-47(c)) which had previously required restaurants
serving beer and other alcoholic beverages to serve no alcohol between hours
of 3 a.m. and 8 a.m. on weekdays and 3 a.m. and 12 noon on Sundays to
provide that no establishment remaining open for business of any type
between hours of 3 a.m. and 8 a.m. is permitted to simultaneously maintain
beer permit, plaintiff restaurant, which serves wide variety of food items 24
hours per day, continued to serve beer during hours previously allowed under
old ordinance, after receiving letter alleging code violation in 6/11, plaintiff
surrendered its beer permit, and plaintiff then filed suit alleging subsection at
issue violated its substantive due process rights under both state and federal
constitutions, because code subsection is not rationally related to legitimate
government interest, trial court erred by ruling in favor of City; ordinance
forcing establishments to choose between providing 24-hour food service
without beer permit and operating during specific times for privilege of selling
beer during permissible hours imposes arbitrary limits on those
establishments, parameters of which are not reasonable exercise of
municipalitys police power; plaintiffs request for judgment declaring
subsection constitutionally invalid is granted. G and N Restaurant Group
I nc. v. City of Chattanooga, 10/8/14, ES, Frierson, 14 pages.
http://www.tncourts.gov/sites/default/files/gn_restaurant_opinion_final.pdf


COURT OF CRIMINAL APPEALS

CRIMINAL PROCEDURE: In case in which defendant pled guilty to
possession with intent to sell 26 grams or more of cocaine within 1,000 feet of
school, because there was not sufficient probable cause to justify issuance of
warrant to search residence in question, defendants conviction is vacated and
dismissed; because there was nothing in affidavit supporting search warrant to
support detectives statement that he had received information that illegal
narcotics were being sold at target residence it was mere conclusory
allegation on part of detective which could not reliably establish ongoing
criminal activity to justify issuance of search warrant trial court erred in
denying defendants suppression motion. State v. Hall, 10/3/14, Nashville,
Thomas, 5 pages.
http://www.tncourts.gov/sites/default/files/hallgregoryopn.pdf

CRIMINAL LAW: Because DUI is continuing offense, state was not required
to make election between defendants driving or being in physical control of his
vehicle two methods by which offense of DUI may be committed. State v.
Morrell, 10/7/14, Knoxville, Witt, 12 pages.
http://www.tncourts.gov/sites/default/files/morreljosephscottlopn.pdf

CRIMINAL PROCEDURE: In case in which trial court granted defendants
motion to suppress results of blood alcohol testing conducted on defendants
blood pursuant to TCA 5-10-406(f)(2) and declared TCA 55-10-406(f)(2)
unconstitutional, because TCA 55-10-406(f)(2) does not mandate warrantless
taking of blood sample, trial court erred by declaring statute unconstitutional as
applied to defendant; TCA 55-10-406(f)(2) mandatory blood draw statute
does not address whether police officer must obtain search warrant before
causing suspects blood to be drawn, thus, statute is open to interpretation that
warrant is required before mandatory blood draw when suspect refuses to
consent to draw; because no exception to warrant requirement justified
warrantless taking of defendants blood state simply failed to establish
existence of exigent circumstances justifying warrantless blood draw trial
court properly suppressed results of blood alcohol testing conducted on
defendants blood sample. State v. Kennedy, 10/3/14, Nashville, Witt, 18 pages.
http://www.tncourts.gov/sites/default/files/kennedycharlesaopn.pdf

CRIMINAL PROCEDURE: In case in which trial court granted defendants
motion to suppress results of blood alcohol testing conducted on defendants
blood pursuant to TCA 5-10-406(f)(2) and declared TCA 55-10-406(f)(2)
unconstitutional, because TCA 55-10-406(f)(2) does not mandate warrantless
taking of blood sample, trial court erred by declaring statute unconstitutional;
TCA 55-10-406(f)(2) mandatory blood draw statute does not address
whether police officer must obtain search warrant before causing suspects
blood to be drawn, thus, statute is open to interpretation that warrant is required
before mandatory blood draw when suspect refuses to consent to draw; because
no exception to warrant requirement justified warrantless taking of defendants
blood state simply failed to establish existence of exigent circumstances
justifying warrantless blood draw trial court properly suppressed results of
blood alcohol testing conducted on defendants blood sample. State v. Wells,
10/6/14, Nashville, Williams, 25 pages.
http://www.tncourts.gov/sites/default/files/wellsjdopn7.pdf

CRIMINAL PROCEDURE: Counsels complete failure to file motion for
new trial constituted deficient performance; because counsel did not file motion
for new trial, she failed to preserve and pursue the available post-trial
remedies, save petitioners challenge to sufficiency of evidence and sentencing
issues; this waiver constituted complete failure to subject the State to the
adversarial appellate process; petitioner presumptively was prejudiced by
counsels deficient performance; as direct result of counsels ineffective
assistance, petitioner was procedurally barred from pursuing all conviction-
related issues on appeal, and states case was not subjected to adversarial
scrutiny on direct appeal; petitioner is entitled to delayed appeal. Young v.
State, 10/9/14, Nashville, Thomas, 9 pages.
http://www.tncourts.gov/sites/default/files/youngjohnnyopn.pdf


SIXTH CIRCUIT COURT OF APPEALS

CONSTITUTIONAL LAW: In case in which group of protesters calling
themselves Occupy Nashville established around-clock presence on Nashville
Memorial Plaza (Plaza) in 10/11 with aim of bringing attention to disparities in
wealth and power in United States, after several weeks of occupying Plaza,
representatives of protesters sought meeting with state officials to discuss safety
and health concerns that had developed in course of lengthy demonstration,
state adopted new policy that imposed curfew for Plaza, six individuals
associated with demonstration (Protesters), who were later arrested for violating
that curfew, brought claims under 42 USC 1983 against various state officials
alleging violations of rights under First, Fourth, Fifth, and Fourteenth
Amendments of U.S. Constitution, district court erred in holding that state
officials were not entitled to qualified immunity; state officials are protected by
qualified immunity because, regardless of specifics of Tennessees
administrative law, Protesters claimed First Amendment right to unrestricted
24-hour access to Plaza is not clearly established; in light of sanitation
problems, violent assaults, damage to state property, and generally unsafe and
deteriorating conditions, state officials were not objectively unreasonable in
believing that they could promptly adopt 10 p.m. curfew that would allow them
to clean Plaza and ensure safety of public in general and Protesters in particular.
Occupy Nashville v. Haslam, 10/8/14, Jordan, 17 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/14a0253p-06.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