Appeals Board Issues Opinion Disfavoring Bifurcation

The Tennessee Workers’ Compensation Appeals Board sent a rather forceful message regarding the bifurcation of compensation hearings yesterday in Cotton v. HUMACare, Inc., et al.

In a word, don’t.

The case involved Karen Cotton’s entitlement to survivor benefits after her husband fell to his death from atop a cell tower on the job for Central USA Wireless. Central USA Wireless contracted with HUMACare, a professional employment organization or “PEO,” to administer payroll.

Hon. Brian Addington, Kingsport, at the outset of the compensation hearing, announced, “[w]e bifurcated this trial, and today the only issue that we’re going to be talking about is whether HUMACare is [an] employer for this case. So the proof is limited to that today.”

After the hearing, however, Judge Addington entered an order finding not only that HUMACare was a co-employer, but also that it owed no workers’ compensation death benefits because it bore no liability for any portion of Mr. Cotton’s wages as described in section 50-6-211. The Court dismissed the case with prejudice.

The Appeals Board vacated the dismissal in a six-page opinion.

Judge Timothy Conner, for the three-judge Appeals Board, cited its previous, similar holding in Rucker v. Flexible Staffing Solutions of Tennessee. In Rucker — released after Judge Addington wrote his order in Cotton — the trial court bifurcated a case on compensability only, but then its order additionally addressed the employee’s entitlement to benefits. The Board vacated the order.

“[A]s we did in Rucker, we conclude that the trial court exceeded the expressed scope of the bifurcated hearing in determining that HUMACare bore no liability for death benefits and in dismissing the claim with prejudice,” Judge Conner wrote.

Rucker also instructed that compensation orders that don’t resolve all justiciable issues are generally not appealable.

In a strongly-worded concurrence, Presiding Judge Marshall Davidson wrote, “While it may serve the interests of efficiency and justice to resolve some cases issue by issue in separate bifurcated trials conducted over time, an expeditious resolution in workers’ compensation cases provides employees and businesses alike much needed finality and the ability to move on. …

“In my view, moving a case toward a resolution one inch at a time through a series of bifurcated trials is generally inconsistent with these objectives and should be avoided unless a sound reason suggests otherwise given the peculiar circumstances of a given case.”

Judge Davidson additionally pointed out that resolving a case incrementally, via multiple bifurcated trials, “carries the inherent risk that one issue may be decided that hinges upon other unresolved issues, creating a potential ripeness problem for both the trial and reviewing courts.”

(No compensation hearings have been bifurcated since Rucker’s issuance on July 26. Just sayin.’)

NEXT WEEK: A return to our regularly-scheduled programming regarding practice in the Court of Workers’ Compensation Claims and in particular closing medicals in settlements.

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