By Jane Salem, staff attorney, Nashville
A very belated Happy New Year to year, and I hope 2017 is starting off well! I recently realized it has been quite some time since I last wrote about the Appeals Boards’ opinions. So, what follows is a two-part recap of some of the more significant Board rulings for the second half of 2016.
Let’s start with the standard disclaimers: This blog post isn’t legal advice or citable; it’s merely meant to help litigants and practitioners find relevant case law. Also, many cases present multiple issues, but for purposes of this article, I typically focused only on one issue per case that struck me as the most important. That’s subjective, obviously. Also, this post doesn’t consider the memorandum opinions that the Board began issuing last summer, in cases where the issues are not novel or complex. In sum, there are no shortcuts; you must read the full-text of the cases.
Starting with compensation hearing appeals, note that since our Court handles cases arising on and after July 1, 2014, there simply haven’t been that many litigated cases that proceeded all the way to a final compensation hearing, and even fewer were appealed. Also, I’ll be skipping the cases where the Board heard oral argument, because these were already the subject of past blog posts. The remaining compensation hearing appeal was Marshall v. Mueller Company, where the Board took a fairly detailed look at the definition of “wages.” Specifically, the Board examined how to calculate the average weekly wage for the purpose of permanent total disability benefits where the employee received a “summer hours bonus” temporary higher rate of pay. The Board affirmed the trial court’s decision to consider the employee’s base rate instead.
Turning now to the expedited hearing appeals, several cases dealt with the appellate rules/procedures themselves. In Barrett v. Lithko Contracting, Inc., the Board held that an expedited hearing order is interlocutory and a party may appeal as a right; it’s not a “permissive” appeal. Further, once a matter is before the Board, under its ruling in Boutros v. Amazon, evidence not considered by the trial court cannot be submitted for consideration on appeal. In addition, in Gilbert v. United Parcel Service, the Board held that the appellee’s failure to submit a transcript on appeal rendered appellate review difficult, so that the Board had little choice but to affirm the trial court’s ruling. (If you are budget-conscious, remember, the rules do allow a joint “statement of the evidence” instead of a transcript, which must be approved by the trial judge.) Finally, Love v. Delta Faucet Co. is noteworthy mostly for the Board’s comments regarding approximately 800 pages of medical records. The Board determined that, rather than summarily vacating the decision and remanding for the purpose of creating a proper record, it would, “on this occasion,” address the merits of the appeal. The take-away is obvious: The Appeals Board won’t read up on the employee’s bunions or kidney stones when the issues revolve around a back injury sustained several years later.
Causation and issues ancillary to it continue to be prime topics for the Appeals Board. For example, Frye v. Vincent Printing Co. summarized causation and idiopathic injuries. Osborne v. Beacon Transport also examined whether an alleged injury was idiopathic in nature. As an aside, in Osborne, the Board clarified that a workers’ compensation judge can’t order payment of past medical expenses if evidence of those expenses isn’t admitted into evidence. Take note, employees’ lawyers: You must get those bills into evidence.
In Lee v. Western Plastics, the Board took another look at the “direct and natural consequences” rule. Similarly, in Richards v. Kiewit Power Constructors Company, the Board examined alleged intervening causative factors in conjunction with an employee’s recurrent hernias. Further, in Partilla v. Velocity Ventures, Inc. and Poellnitz v. Resolute Forest Products, the Board considered causation where there are competing medical experts.
Lastly for this post, the Board revisited areas that can stymie a case before considering the injury itself, namely, notice and limitations. Respectively, in Buckner v. Eaton Corp., the Board examined the notice requirement and in particular the prejudice suffered by the employer, while in Kelso v. Five Star Food Service, the Board considered the statute of limitations and “last-day worked” rule.
It’s almost Friday and the weekend!