April Appeals Board decisions, etc.

Let’s do the “etc.” first with a pair of announcements:
1) Please be advised that there will be no settlement approvals in the Nashville office on Friday, April 29, 2016.
2) We have updated the subpoena form on the website to contain HIPAA-compliant language when requesting medical information.
With regard to activity from the Appeals Board, it has been roughly five weeks since we posted anything about its work. That time has seen the release of several noteworthy opinions.
In Syph v. Choice Food Group, Inc., the Appeals Board held that the Tennessee Rules of Evidence and Rules of Civil Procedure apply at all proceedings in the Court of Workers’ Compensation Claims. Judge Conner issued the main opinion, while Presiding Judge Davidson and Judge Hensley wrote separately to concur.  
Compensability is often an issue at the expedited hearing phase. In Lewis v. Molly Maid, et al., the Board affirmed the trial court’s conclusion that, while an employee’s evidence was insufficient to establish compensability by a preponderance of the evidence, it was sufficient to support an order compelling the employer to provide a panel.
In Navyac v. Universal Health Services, the Appeals Board clarified causation under the Reform Act in two ways. First, the Board held that the general assembly did not alter the traditional two-prong analysis of “arising out of” and “in the course of” employment when it added the verbiage “scope of” employment to the definition of “injury.” Second, the Appeals Board explained: “[I]n evaluating whether an injured worker’s accident arose out of employment, the critical question is not whether a third party’s fault or negligence ’caused’ the injury as that term is applied in a tort setting, but whether the employment more likely than not caused the accident in the sense that the accident had its origin in hazards to which the employee was exposed by reason of the employment.”
The Appeals Board broke no ground in Leas v. Opus Inspection, Inc., et al., when it affirmed the trial court’s conclusion that an injury was not primarily caused by employment when an authorized treating physician (ATP) opined as such, and the employee presented no medical evidence to rebut the presumption of correctness afforded to the ATP’s opinion. Finally, the Board affirmed the trial court’s ruling that an employee was terminated for misconduct and was therefore not due additional temporary disability benefits in Shepherd v. Haren Construction Company, Inc., et al. 
We plan to continue bringing regular updates on Appeals Board opinions, to help practitioners and parties alike keep up with the rapidly developing body of caselaw applying the 2013 Reform Act.

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