Welcome back once again to our review of last year's workers' compensation appellate opinions.This article will summarize the 2019 opinions from the Tennessee Supreme Court Special Workers' Compensation Panel.
First up are appeals from the Court of Workers' Compensation Claims applying the “new law.” Then I'll mention a few key “old law” cases.
I'm going to repeat my plea from my first article in this series: Read the cases. It's difficult to boil an opinion down to roughly 40 words, especially when the appellate court decides more than one significant issue. Thanks.
Starting with cases from the Court of Workers' Compensation Claims, perhaps the most newsworthy opinion is Sandoval v. Williamson, where the Panel affirmed the trial court and upheld the constitutionality of section 50-6-207(3)(F), which doesn't allow increased benefits to employees who aren't eligible or authorized to work in the U.S.
In two cases, the Panel reversed an Appeals Board majority and reinstated the trial court's decisions.
InJoiner v. United Parcel Servs., the trial court held that an employee overcame the presumption of correctness to an authorized treating physician's causation opinion. The Panel found the employee's expert's opinion that the worker's conditions “stem from” the workplace incident met the legal standard on causation, although it wasn't a rigid recitation of that standard.
Next, the Panel agreed with the trial court that an employee was permanently and totally disabled in Duignan v. Stowers Mach. Corp. The Appeals Board majority had reversed because the injured worker didn't accept a position with the employer that he believed would exceed his restrictions. The Panel held, however, that a job offer or actual employment post-injury is only one of several factors for a court to consider when deciding if a worker is permanently and totally disabled.
The Panel affirmed the trial court's award of extraordinary relief in Wright v. Nat'l Strategic Protective Servs. The Panel reminded that the trial court may make an independent examination of the evidence and isn't bound to accept or reject an expert's opinion in its entirety. The Panel also held that the trial court didn't err by admitting a physician certification form into evidence, because by requiring the certification in the statute, the General Assembly intended to provide an efficient method for presenting the authorized treating physician's opinion as to whether the work injury prevented the employee from performing his or her pre-injury occupation.
In Bunton v. Sanderson Pipe Corp., the Panel affirmed, rejecting an employee's assertion that he didn't engage in willful misconduct. The employee placed his hand inside moving machinery, which amputated his fingers. The employee argued the trial court removed the “willful” requirement, but the Panel disagreed because the trial court specifically found that the worker intended to place his hand inside the moving machine in violation of the safety rule.
In Coleman v. Armstrong Hardwood Flooring Co., the Panel affirmed the trial court's ruling accepting an impairment rating from the authorized physician. The AMA Guides gave the worker a rating, but the physician used an “extrapolation method” not contained in the Guides to reduce it, separating out the hearing loss that he believed to be unrelated to work. Also of interest: A footnote explains the etymology of the word “draconian.” Draco was an Athenian lawgiver who “wrote his laws in blood, not ink.” Sounds very Game of Thrones.
In Hayes v. Costco, the Panel affirmed the trial court determination that an employee didn't overcome the presumption of correctness to an authorized treating physician's opinion on the work-relatedness of her need for a knee replacement. The IME physician said that her “work-related injury … caused her to have a knee replacement,” compared to the treating doctor's opinion that more closely resembled the statutory definition of a compensable injury.
Finally, where an employee failed to present medical evidence that her alleged injuries arose primarily out of and in the course and scope of her employment, the trial court properly denied her claim. The Appeals Board affirmed, as did the Panel. The case is House v. Amazon.com.
So, have you noticed what all of the above cases have in common, other than their subject matter and originating court? The answer is, the Panel sided with the trial court in every case. (Fist-bump, judges.)
The panel released several other opinions. I won't recap them all. Some have limited value because the former remedial construction played a role, while others seem so fact-specific that they have minimal precedential value.
The Panel issued a case on attorney-fee applications with valuable instruction to practitioners and courts alike in Keen v. Ingles Markets. The Panel vacated a fee award because the judge made a bench ruling without making findings on each of the 10 Supreme Court factors under Rule 1.5(a) of the Rules of Professional Responsibility.
Permanent total disability was disputed in many of the Panel's 2019 old-law cases.
The Panel affirmed a determination that the injured worker was permanently and totally disabled in McCloud v. Charter Communications. The employer argued the worker's age (40 when the case was tried), varied work history, prior training for other jobs and the fact that he was “highly trainable” contradicted the award. However, his vocational expert testified that no jobs were available for which he was qualified, the employer offered no contrary evidence on that point, and the trial court found the worker credible.
In another case, Venture Express v. Frazier, the Panel affirmed the trial court's finding of permanent total disability resulting from a combination of neck, back and mental injuries. Notably, the employer didn't offer its own medical experts for the neck and back injuries, and neither party introduced an expert vocational opinion; the medical evidence and the lay testimony sufficed.
The Panel offered a little advice to experts when it upheld a perm total finding in Natchez Trace Youth Acad. v. Tidwell. It observed, “many times, the trial court's determination regarding credibility of opposing expert witnesses turns on whether the expert is willing to concede a point even though it may somewhat undercut the position the expert has been called upon to support, when compared to another expert who is unwilling to concede any point of contention.” This sounds like wise counsel for everyone, actually.
The Panel rejected an employee's contention that she was permanently and totally disabled in another case. Although her vocational expert found her 100 percent disabled, his opinion was based on a physician restriction of no lifting more than five pounds. Considering the employee's testimony and that no physician said she was permanently and totally disabled, the Panel affirmed. The case is Bain v. UTI Integrated Logistics.
In another case, the Panel had “little trouble” affirming a trial court finding of no permanent total disability, where three physicians placed impairment ratings of five percent or lower compared to the employee's expert's 30%, and only the latter placed restrictions. The employer also introduced surveillance video of the worker jogging in Hamad v. Real Time Staffing Servs.
As for permanent partial disability, the panel affirmed a lower court ruling that an employee overcame the presumption of correctness afforded to the rating of a physician from the Medical Impairment Rating Registry by clear and convincing evidence. Given that standard, this type of finding is relatively rare. The case is Adams v. Rich Prods. Corp.
Turning to a few medical causation cases, this is regularly disputed in occupational disease cases. In Butler v. Tenn. Mun. League Risk Mgmt. Pool, the employee claimed he became sick due to exposure to the aspergillus fungus from working in landfill trenches, while the employer said he was exposed at his farm. The Panel reversed the lower court finding of no causation, noting it was “strangely coincidental” that other landfill workers also became ill.
In Harlow v. Love's Travel Stops & Country Stores, the Panel affirmed a trial court ruling that an employee overcame the presumption of correctness to an authorized treating physician's causation opinion. Although both the IME and treating physicians only saw the injured worker once, the IME doctor spent more time with him and had more information available to him, including a detailed medical history about the alleged mechanism of injury.
In McKnight v. Hubbell Power Sys., the Panel affirmed a trial court order that an employer provide surgery recommended by the authorized treating physician more than ten years after the work incident, comparing his testimony with that of an IME physician and finding he refuted all contrary conclusions. The Panel also affirmed the lower court's denial of a motion under Tennessee Code Annotated section 50-6-204(d)(9) to appoint a neutral physician with both parties splitting the cost. These motions don't seem to be made often, nor are they widely granted.
The Panel affirmed a lower court decision declining to order an employer to authorize pain management in Brantley v. Brantley. The injured worker had an unsigned referral form, but the treating physician testified “unequivocally” that any pain he was having was unrelated to the work injury, there was no reason to send him to pain management, and he hadn't made the referral.
The Panel reversed a grant of summary judgment involving the statute of limitations in Williams v. SWS, reminding that these types of cases “most often are factual in nature,” and “summary judgment should be entered cautiously[.]”
Finally, in another case presenting a defense — this time willful misconduct — the Panel engaged in a lengthy analysis of the Mitchell v. Fayetteville Pub. Utilities factors. The Panel found the trial court relied on inadmissible hearsay to find no bona fide enforcement of a safety rule and reversed that finding. But the Panel affirmed the finding that the employee did not violate the rule willfully, so it affirmed the trial court judgment. The case is Tenn. Clinical Schools v. Johns.
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