History in the Making

Mark your calendars for an upcoming historical event!
The Workers’ Compensation Appeals Board announced last month that it will conduct its very first pair of oral arguments on August 31, 2016, in the courtroom at Belmont University College of Law in Nashville, commencing at 9:30 a.m. Central. The Board will hear Lightfoot v. Xerox Business Services. Per the Order setting the case for oral argument, the Court is particularly interested in whether the trial court, Hon. Audrey Headrick, Chattanooga, abused her discretion in dismissing the employee’s claim with prejudice. The other matter is Alan Cotton v. HUMACare, Inc., an opinion by the Hon. Brian Addington, Kingsport, determining which employer is liable in a co-employment situation. As an aside, the Reform Act of 2013 did not contain provisions allowing for oral argument before the Appeals Board, but in May 2015, the Governor signed amendments to the law to authorize oral arguments.
The arguments will likely serve as the culmination of what can only be classified as a busy summer for the Appeals Board. The three judges released some 14 opinions, recapped below, in addition to their other duties.

Presiding Judge Marshall Davidson, Appeals Board
Cases presenting issues of causation are “frequent fliers” in workers’ compensation law, so let’s start there.
The Board released a pair of opinions involving alleged idiopathic injuries on Aug. 2, 2016. In Frye v. Vincent Printing Co., the Board reiterated that, when determining whether an injury is idiopathic in nature, “cause” does not mean “proximate cause” from the law of negligence, but rather whether the accident stems from hazards to which an employee was exposed as a result of performing job duties. The case involved an employee exposed to fumes who used an inhaler to alleviate shortness of breath prior to a falling on her machine. Similarly, in Thomas v. Zipp Express, the employee/truckdriver suddenly lost consciousness, fell and became injured in a truck stop convenience store due to sleep deprivation. The Board likewise rejected the employer’s contention that the fall was the result of uncontrolled diabetes and was therefore idiopathic in nature.
Thomas also involved competing expert medical opinions on causation — as did Sanker v. Nacarato Trucks, Inc. and Poellnitz v. Resolute Forest Products. In all three cases, the Board affirmed the lower courts’ rulings.

In Riley v. Group Electric, the Board affirmed the trial court’s causation ruling based on the credibility of the employee’s mechanism of injury, even though treatment notes contained discrepancies regarding how he became injured.

Judge Timothy Conner

With regard to permanent disability benefits, history buffs will take interest in Marshall v. Mueller Company, a case presenting an issue of first impression regarding the application of the statutory multipliers. Specifically, the Board examined the definition of the term “wages,” where an employee received a “summer hours’ bonus” or a “shift differential.” The opinion traced amendments to the statute over the past 24 years, concluding that the General Assembly did not intend for an employee who becomes injured while receiving such a pay increase to be entitled to increased permanent disability benefits.

The Board issued two opinions regarding temporary disability benefits. In Hackney v. Integrity Staffing Solutions, Inc., et al., the Board affirmed the trial court’s finding that that an employee’s refusal of light-duty work for a shift different than that she worked, pre-injury, was unreasonable. Also, in Barrett v. Lithko Contracting, Inc., the Board found the employee’s termination for cause precluded his entitlement to temporary partial disability benefits.
Moving on, Smiley v. Four Seasons Coach Leasing, Inc., et al. required the Board to take another look at the distinctions between independent contractors and employees. The Board affirmed the trial court’s finding that the claimant was an employee, even though he was paid as a “1099 contractor.” The Board further declined to characterize the employee as a “loaned servant.”
Then in Valladares v. Transco Products, Inc, et al., the Board ventured further into the (muddy?) waters of the procedural aspects of the Reform Act, in an 18-page ruling that includes a concurrence. The Board held the trial court did not err when it decided an unopposed motion on its merits rather than summarily granting the relief sought. The Board additionally affirmed the lower court’s denial of a motion to dismiss for failure to state a claim, reminding that the petition for benefit determination serves as the equivalent of a complaint. Further, the trial judge did not err when he scheduled an initial hearing without a request to do so, The concurring opinion once again questioned at which stage the Rules of Evidence and Civil Procedure attach for post-July 1, 2014 claims–a question initially raised in Syph v. Choice Food Group, Inc.  
Judge David Hensley

Other rulings included:

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