By Judge Allen Phillips, Jackson
“Let’s get on down
To the main attraction,
With a little less talk
And a lot more action.”
I feel reasonably confident that Toby Keith was NOT referring to Tennessee Compilation Rule and Regulation 0800-21-02-.16 in the above refrain. However, the Court of Workers’ Compensation Claims now has a directive from our Appeals Board that tells us much the same thing when it comes to medical evidence.
In Love v. Delta Faucet, the Board addressed what it called “a common problem,” namely “the submission of irrelevant medical records and the failure to comply with Tenn. Comp. R. & Regs. 0800-02-21-.16(6) (2015).”
In that case, the employer introduced “voluminous medical records that [had] nothing to do with Employee’s injury.” For example, included in the 700-plus pages were: twenty-plus year-old records of chest pains, skin rashes and a thumb injury; distant hypertension, gallbladder, and fertility procedure records; and trivialities such as insurance cards and instructions on how to take a water pill.
Faced with such “irrelevant records introduced into evidence,” the Appeals Board noted its “appellate review . . . has been rendered ‘unnecessarily cumbersome and time-consuming.’” (They were citing James v. Landair Transport, Inc.) However, “[r]ather than summarily vacating the trial court’s decision and remanding this case for the purpose of creating a proper record, we will, on this occasion, address the merits of the appeal.” (Emphasis added.)
The italicized statement is particularly instructive: “on this occasion.” It seems clear that, in the future, the Appeals Board will not hesitate to remand a case to pare down voluminous records.
So, what may the litigants, and for that matter, the trial courts, do to avoid a remand and an annoying delay? The Love opinion provides the answer.
In Love, the Appeals Board noted the parties had not complied with Tennessee Compilation Rules & Regulations 0800-02-21-.16(6). That rule provides, in part:
- All medical records designated by the parties to be presented as evidence at a scheduled hearing shall be filed no later than ten business days before the scheduled hearing date.
- All medical records signed by a physician or accompanied by a certification that the records are true and accurate, which has been signed by the medical provider or custodian of records, shall be admissible.
- All medical records designated to be presented as evidence at a scheduled hearing that exceed ten pages shall include a chronological table of contents. The medical records designated shall be filed with the Bureau and each of the records shall be identified by author and date and numbered as in the table of contents.
This italicized portion was the Board’s focus in Love. The parties “shall” draft a table of contents of the medical records and arrange the records chronologically. A good example looks like this:
Note the table references the “author” (the provider) and the records are then numbered for purposes of the Table of Contents. To avoid later issues and duplicative work, consider creating the Table of Contents at the first stage of the case, i.e., before mediation.
But, what of the Board’s other concern: irrelevant medical records? By definition, Rule 401 states that “’Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
Again, using Love as an example, the focus is upon evidence “that is of consequence.” The Board emphasized that the medical evidence in a shoulder-injury case need not include twenty years’ worth of records dealing with heart concerns, mammograms or child birth. Of course, no work-related anatomic condition is brought to clarity by the inclusion of fax cover sheets or insurance cards. (Unless of course the issue is who paid what or when did a certain communication occur for example.)
The point is that the parties should focus the evidence they introduce at a hearing upon relevance in its truest sense: what makes the existence of a salient fact more probable or less probable. The trial court’s goal is not to prevent parties from proving or defending their case, or even keeping them form putting in proof; the goal is to move cases efficiently and expeditiously. Note the Appeals Board has only seven days to decide an appeal after receiving the record.
So, how do we ”get on down to the main attraction?”
First, follow the rules. If you are requesting an Expedited Hearing, file with the hearing request any “affidavits and any other information demonstrating that the employee is entitled to temporary disability or medical benefits.” Rule 0800-02-21-.14(1)(a). If defending the action, “immediately upon receiving the motion (request), but in no event later than five (5) business days,” then “submit all information . . . demonstrating that the employee is not entitled to temporary disability or medical benefits.” Rule 0800-02021-.14(b).
Second, note the common sense “flow” of the rules in context of the definition of “relevant” evidence. The proponent (employee) must provide evidence “demonstrating that the employee is entitled to benefits;” she need not provide, and in fact should not provide, anything else. Unless it demonstrates an entitlement to benefits, it is not needed, and it is not relevant. The same goes for the opponent, the employer, who must submit all “information demonstrating that the employee is not entitled” to benefits. Discussing with and agreeing with the other side as to the medical records needed, and agreeing to their admissibility, helps with most of these issues.
Let’s follow the Board’s (and Mr. Keith’s) advice and use a little less talk and a lot more action. It makes things move easier, and it prevents costly, time-consuming remands to clean up voluminous exhibits.