Appeals Board Schedules Oral Arguments

The Tennessee Workers’ Compensation Appeals Board recently announced it will convene oral arguments in two cases next month.

On Thursday, Nov. 3, at 10:00 a.m., the Appeals Board will hear arguments in Pope v. Nebco of Cleveland, Inc., d/b/a Toyota of Cleveland. Mr. Pope suffered injuries when participating in a charitable “mud run” sponsored by Nebco. At the Compensation Hearing, Judge Thomas Wyatt ordered medical benefits, rejecting Nebco’s argument that the Workers’ Compensation Law provides for no compensation for injuries sustained due to an employee’s voluntary participation in athletic events. Judge Wyatt found Mr. Pope’s participation was impliedly required and that at the time of the injury his job assignment was to participate in the event. Judge Wyatt additionally awarded Mr. Pope’s counsel an attorney fee of 20 percent of the out-of-pocket medical expenses Nebco must pay.

The second matter before the Board is Garassino v. Western Express. At the Compensation Hearing, Judge Joshua Davis Baker held Mr. Garassino’s evaluating physician overcame the presumption of correctness regarding causation afforded to the authorized treating physician. The Compensation Hearing Order additionally awarded Mr. Garassino the costs relative to his physicians’s examination and stated that it was a final order. In a subsequent order, Judge Baker clarified that the costs awarded to Mr. Garassino included the expense of his physician’s examination fee and fee for reviewing the records. On appeal, Western Express argues that the independent medical examiner’s fee cannot be awarded as recoverable discretionary cost under Tennessee Rules of Civil Procedure 54 and the Workers’ Compensation Law. The Board will also consider whether the compensation order was final, and if so, the impact it has on the later order of costs.

Arguments will take place in the Courtroom of the Supreme Court Building in Nashville.


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