A Busy Year for the Appeals Board, Part Three

The first year for Tennessee’s new workers’ compensation courts has been as exciting as a trip down the Ocoee. 
This summer saw the release of several weighty opinions from the Tennessee Workers’ Compensation Appeals Board, a few of which are highlighted below. This post will conclude our three-part look back at the Board’s first year. Remember, however, that this post is news only; it’s not legal advice or legal research. (Lawyers love disclaimers.)
In June, in Bradshaw v. Jewell Mechanical, LLC and Mace v. Express Services, the Appeals Board took up preexisting injuries as they relate to causation.
Long v. Hamilton-Ryker, released at the end of the July, was the Appeals Board’s first look at the statutory factors defining a compensable, work-related hernia. The Board clarified what a “sudden appearance” means, among other rulings. 

The Appeals Board issued several noteworthy opinions in August. In Kirk v. Amazon, Inc., the Board declined to consider a “post-hearing causation letter.” Under the old law, parties occasionally presented information not available during the Request for Assistance teleconference to administrative review. The Board made it clear that, under the new law, the time for presenting evidence is the hearing and not on appeal. Further, the Board reversed the workers’ compensation judge’s ruling that an authorized provider’s causation opinion was unworthy of the statutory presumption of correctness because the physician didn’t “treat” the employee. Rather, the presumption attached because the employee selected him from a panel that was in compliance with the statute.
Scott v. Integrity Staffing Solutions clarified the role of lay testimony in establishing medical causation under the new law, concluding that an employee’s lay testimony, without corroborative expert testimony, didn’t constitute adequate evidence of medical causation, nor did it overcome the presumption of correctness to which the causation opinion of the treating physician is entitled.
Then in James v. Landair Transport, Inc., the Board cited the longstanding three-part test for eligibility for temporary total disability from Simpson v. Satterfield, 564 S.W.2d 953, 955 (Tenn. 1978). In James, Appeals Board additionally chastised the parties and counsel for making its job “unnecessarily cumbersome and time-consuming,” because they didn’t organize the medical records in accordance with rules for both the Court (see Rule 7.01) and the Bureau (See Rule 0800-02-21.16(6)(c). This is a topic mentioned in a past blog post. The judges so far have cut lawyers and unrepresented litigants slack on this, but as their caseloads grow, expect strict enforcement.
Finally, September began with a flurry of activity from the Board. In MacDonald v. Greene County Sheriff’s Department, the Court rejected the employer’s contention that a “catastrophic injury” is the sole basis for which a workers’ compensation judge may conduct an expedited hearing under the statute, In a decision released on the same day, Lallo v. Marion Environmental, Inc.the Board nixed the employer’s argument that it shouldn’t be required to provide medical benefits until it has received the employee’s prior medical records. Rather, the authorized provider is in the best position to determine what additional information, including past medical records, is necessary. Then came Smith v. The Newman Group, LLC, where the majority opinion concluded that an employee’s failure to file a request for expedited hearing within 60 days of filing of the dispute certification notice did not automatically mandate a dismissal of the case. Instead, the workers’ compensation judge may exercise discretion to determine whether the employee offered a sufficient explanation to convince the trial judge to allow the case to continue.
It will be fascinating to see what develops in the case law as the new Courts enter their second year. Looking back, it’s been a learn-as-you go year, for the judges, lawyers and litigants alike, but all in all the judges are very proud of what’s been accomplished thus far, and they’ve already set goals for further improvement for year two. It’s a privilege to help them do their work. The Clerk of Court, Penny Shrum, and I stand ready to help to anyone with procedural questions. We can be reached, respectively, at WC.CourtClerk@tn.gov and jane.f.salem@tn.gov.
— Jane Salem

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