Looking Back at 2017’s Causation Cases — So Far

By Jane Salem, Staff Attorney, Nashville

July 1 marks the third year of the effective date of the Reform Act. Happy birthday to the Court of Workers’ Compensation Claims; the Appeals Board is a month away from its birthday.

July also means the year is already half over, which makes it a suitable time to look back at the case law from the Appeals Board over the past six months. This installment will look at cases where causation was at issue, while the next post will focus on everything else—an Appeals Board pot pourri of sorts.

But first, let’s take a quick look at the numbers. So far this year, the Board issued 37 appellate opinions: seven compensation appeals and 30 expedited appeals. Of these, 16 appeals resulted in issuance of memorandum opinions, while the majority presented issues of fact or law of significance to warrant full opinions. This article delves only into the full opinions.

Starting with the compensation appeals, Bass v. The Home Depot U.S.A., Inc. involved the compensability of an alleged work-related aggravation of an employee’s underlying arthritis. The Board affirmed the trial court’s ruling that Mr. Bass’ independent medical examiner did not rebut the presumption of correctness afforded to the opinion of an authorized treating physician. The Board reached a similar conclusion in Darraj v. McKee Foods Corp., while reiterating that self-represented litigants will be held to the same standard as attorneys. Mr. Darraj also faced a language barrier.

Then in Panzarella v. Amazon.com, Inc., the Board clarified that a physician rendering a causation opinion doesn’t need to use the particular words or phrases within the statute’s definition of “injury.” Rather than a “rigid recitation” of the statute, there must be sufficient evidence from which the trial court can conclude that the statutory requirements are satisfied. The opinion harmonizes well with Edwards v. The Job Shoppe U.S.A., an expedited appeal in which the Board rejected the employer’s “overly-narrow interpretation” of an authorized treating physician’s report, affirming the trial court’s grant of additional medical benefits. The implication is that trial courts and the Appeals Board should consider the record as a whole.

As in Edwards, preexisting conditions played a significant role in two additional cases where the authorized treating physicians appeared to give equivocal causation opinions.

First, in Gamble v. Miller Industries, Inc., the Appeals Board vacated the trial court’s order for Miller Industries to authorize the employee’s hip-replacement surgery. The dispute centered around an authorized physician’s opinion that the fall at work “was the proverbial straw that broke the camel’s back” but that Mr. Gamble’s avascular necrosis was “long standing and would represent greater than 51% of the need for hip replacement.”

Second, in Stallion v. TruGreen, L.P., the authorized physician concluded that Mr. Stallion didn’t require further treatment, but if he did, it would be for non-work-related degenerative disc disease. The trial court ordered additional medical benefits, which the Board reversed, reasoning that no physician had rendered an opinion that satisfied the statutory requirements necessary to establish a compensable aggravation.

Moving on, another preexisting injury case—Berdnik v. Fairfield Glade Community Club—definitely merits a read by any Tennessee workers’ compensation practitioner. In the case, the employer provided neither treatment nor a panel but denied the claim based largely upon Ms. Berdnik’s history of chronic back problems. Fairfield Glade later requested an IME, where the physician concluded the alleged injury was not work-related. The trial court found the employee was unlikely to prevail at a hearing on the merits but nonetheless ordered a panel. The Appeals Board reversed the panel order, citing the IME physician’s opinion as the only medical proof in the case. The Board cautioned employers not to construe its opinion as carte blanche to ignore their obligations under the Claims Handling Standards, and it referred Fairfield Glade to the Bureau’s Compliance Unit for consideration of a penalty.

The Appeals Board revisited the willful misconduct defense in Roper v. Allegis Group. The Board affirmed the trial court’s ruling that Allegis Group didn’t prove a willful violation of a safety rule, rejecting its argument that an employee’s lack of a valid excuse to follow a safety rule constitutes “willfulness.” The judges characterized this as an overly broad interpretation of Mitchell v. Fayetteville Public Utilities, which would allow employers to deny benefits to employees whose “merely negligent or reckless actions” result in a violation of a known safety rule.

Finally, in Morales v. Boshwit Brothers, the Board examined causation in the context of workplace assaults. Mr. Morales, an apartment complex groundskeeper, suffered serious gunshot wounds from an unknown assailant while mowing the lawn. The Appeals Board reversed the trial court’s ruling that the street-risk doctrine did not apply. The Board noted, among other considerations, that signage invited prospective renters on to the property to view available units.

Part two of this article runs next week. In the meantime, have a safe and happy Independence Day (and remember that all Bureau offices are closed that day but are open on July 3).


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