Appeals Board Opinions Recap, Part Two

By Jane Salem, Staff Attorney, Nashville

Welcome back to our review of Appeals Board decisions for the first half of 2017. Now that we’ve celebrated the Fourth, it’s time to start shopping for back to school, right?

Last week, we looked at causation. This post will be about everything else.

Turning first to some of the meatier opinions, in Panzarella v. Amazon.com, Inc., the trial court decided after a compensation hearing to issue an expedited hearing order rather than a final compensation hearing order, finding an issue wasn’t “ripe” for final determination. The Board hearkened back to one of its most oft-cited opinions, McCord v. Advantage Human Resourcing, (You have read it, right? Just checking.) The judges concluded the trial court erred, reasoning that the two types of proceedings require different standards of proof.

Another important ruling came down in Andrews v. Yates Services, LLC, where the Board addressed for the first time the application of the statutory provision that gives trial courts discretion to award attorney’s fees and expenses when an employer fails to furnish appropriate medical care, wrongfully denies a claim or fails to timely initiate benefits. Under the circumstances in Andrews, the Board found the fee award premature, “given the twist and turns inherent in litigation,” but emphasized it wasn’t holding that an interlocutory award under the section would always be improper. The opinion is also important for what it didn’t decide: whether an employer’s actions must constitute “bad faith.” Stay tuned.

Another noteworthy case was Willis v. Express Towing, which examined the definition of “employer.” The Board affirmed the trial court’s ruling that an alleged employer satisfied the statute’s requirement of five or more employees, where one of the alleged employees lived at the business rent-free but performed odd jobs for Express Towing.

Moving on, since the Reform Act took effect, some employers have voiced concern over their inability to recoup temporary disability benefits paid in cases that are ultimately found noncompensable. The employer unsuccessfully raised this argument in Green v. Rogers Group. The Board agreed that the reform precludes reimbursement from the Second Injury Fund, now called the Subsequent Injury and Vocational Recovery Fund, but reminded that employers may seek reimbursement from employees. The opinion contains another significant ruling, namely that nothing in the statute or the regulations limits a party to filing only one request for expedited hearing. Moreover, nothing prohibits a trial judge from considering whatever evidence is properly presented to it in the context of a particular request for hearing or motion.

Speaking of motions, the judges on the Court of Workers’ Compensation Claims have noticed a marked increase this year in motion practice generally and summary judgment motions in particular.

As for summary judgment, Tennessee workers’ compensation practitioners should read both the majority and dissenting opinions in Mitchell v. Randstad North America before filing or responding to these motions. The case is instructive regarding the standard applied and what these motions should contain.

Summary judgment typically boils down to whether an employer negates an essential element of the employee’s claim or demonstrate that the employee’s evidence is insufficient to establish an essential element of the claim. In Thomas v. Zipp Express, the Board affirmed the trial court’s denial of summary judgment where the Court cited a medical record from a neurologist who concluded that the employee’s syncopal episode was “probably due to sleep loss.” It was a reasonable interpretation that work-related sleep deprivation was the primary cause of Mr. Thomas’ injury. The Board also remarked on the form of the medical proof in this case, noting the absence of affidavits, attachments to depositions, answers to interrogatories or admissions or part of a pleading. The implication is clear, practitioners.

In another matter, the Board held that the trial court should have treated a motion to dismiss as one for summary judgment. In Palmer v. Hardy, the Board held that, in denying the dismissal motion, the trial court considered matters outside the pleadings. The error was harmless, however, because the motion didn’t comply with Rule 56 of the Tennessee Rules of Civil Procedure. (You’re aware that the Rules of Civil Procedure and Evidence apply in the Court of Workers’ Compensation Claims, right? Just checking.)

The Appeals Board examined another civil procedure rule – this time Rule 59.04, motions to alter or amend — in Watson v. Labor Smart, Inc. The judges held that the trial court retains jurisdiction to resolve a timely-filed motion to alter or amend and that a notice of appeal filed prior to the filing of the motion, or prior to the trial court’s disposition of such a motion, will be considered filed on the day the trial court files its order resolving the motion. The Board additionally reminded that it’s not bound by the Rules of Appellate Procedure, but they find them “instructive.”

At the other end of the spectrum – the beginning of many cases – quite a few litigants find themselves early on in front of a trial judge explaining why their cases shouldn’t be dismissed for failing to a request a hearing within 60 days of issuance of the dispute certification notice. Likely this is due to a self-represented litigant or an attorney who is unfamiliar with court rules being unaware of the timeline. In Lawson v. HDK Industries, Inc., the Board held the trial court didn’t abuse its discretion in declining to dismiss a case at a show-cause hearing.

A couple of Appeals Board opinions examined the trial court’s handling of motions to continue or stay proceedings, which are generally disfavored.

First, in Hollis v. Komyo America, the Board affirmed a decision to delay the hearing of an employer’s summary judgment motion, noting that a trial court “may exercise discretion in controlling the pace of litigation and in efficiently disposing of its cases.”

Second, the Board likewise affirmed a grant of continuance in Wright v. Cookeville Regional Medical Center. In this case, the employer asserted over a dozen defenses on the dispute certification notice. The Board reiterated a trial court’s wide discretion when determining such motions. It also reminded that Rule 11 sanctions are a possibility for parties who raise claims or defenses that don’t have evidentiary support.

Finally, and along these lines, the Board defined what constitutes a “frivolous appeal” in McWherter v. Centurion Products. The judges held the self-represented employee’s appeal was frivolous but declined to award fees or expenses “at this time.”

Whew! The Board has been busy. At this time, I will close by wishing you an enjoyable rest of your summer.

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