February 2020Tennessee Appeals Board Finds “Could Be” Medical Testimony Insufficient to Establish CausationPrior to 2014, the compensability of Tennessee workers’ compensation injuries was frequently established by medical testimony that the injury “could be” or “might be” work related. That ended in 2014 with the Tennessee Workers’ Compensation Reform Law. One of the many changes brought about under the Reform was the statutory requirement that an injury was not compensable unless it aroseprimarily out of and in the course and scope of employment. Moreover, causation had to be established to a reasonable degree of medical certainty, meaning more likely than not, “as opposed to speculation or possibility.” Presumably, this now means that “could be” or “might be” medical testimony is generally not enough to support a finding of compensability. The Tennessee Workers’ Compensation Appeals Board put that proposition to the test on January 21, 2020, in the case ofArmstrong v. Chattanooga Billiard Club. In that case, the employee alleged injuries to her mouth, face, and right arm as a result of receiving an electrical shock in the course of her employment. The employer denied causation of the alleged dental injuries, relying on the opinion of Dr. Richard Johnson that the dental injuries were not work related. However, the employee responded by submitting the medical opinion of Dr. Drew Shabo that the dental work needed to save the employee’s teeth “could very well be needed due to the electrical shock.”The Appeals Board reviewed this case on a motion for summary judgment from the employer. Finding that Dr. Johnson’s opinion was sufficient to negate an essential element of the employee’s claim, the burden shifted back to the employee to demonstrate the existence of specific facts in the record that could convince the court to resolve the causation issue in her favor. The Appeals Board found Dr. Shabo’s “could be” opinion insufficient to satisfy the statutory causation standard. Therefore, the employer was entitled to summary judgment with regard to the alleged dental injuries.For more information, please contact:Fredrick R. Baker, Member1420 Neal Street, Suite 201P.O. Box 655Cookeville, TN 38503-0655Phone: 931-372-9123Fax: email@example.com
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