By Jane Salem, Staff Attorney, Nashville

I recently promised an article about the Appeals Board’s activities from the second half of 2017. Here it is, in two parts. But first, please read and mentally sign the waiver below.

Thanks. Now, before I delve into the cases, 2017 was memorable for the Appeals Board for reasons other than its opinions.

First, the law changed in May to allow oral argument in expedited hearing appeals as well as appeals of compensation hearings. This past year, oral arguments became more commonplace. That trend will likely continue. The Board is widely known as a “hot” court; the questions-and-answers are frequent and thought-provoking.

Second, the Board completed two long-term projects to assist self-represented litigants, releasing a guidebook and video on its web page. 

This was on top of a flourishing caseload. By the numbers, this past year, the Appeals Board released 73 opinions. Almost half of these were memorandum opinions. The Board decides appeals as a matter of right, so sometimes they review cases that present no novel legal or factual issues.

A frequent occurrence in these memorandum opinions is the appellant fails to file a transcript or argue where the trial court erred. Often these appellants are self-represented, but sometimes they’re not. The lesson is clear: Without a transcript and brief, an appellant’s chances of success are slim.

Summary judgment motions on the rise

A trend that began in 2016 but really took off in 2017 was filing motions for summary judgment.

Among those that made their way to the Appeals Board last year was LaGuardia v. Total Holdings USA, where the Board reversed the trial court’s grant of summary judgment. Noteworthy in the opinion is the Board’s take on the type of evidence for courts to consider when determining whether an injury was primarily caused by a hazard incident to work. “While direct evidence, such as eyewitness testimony, can satisfy this burden, an employee can also meet this burden with circumstantial evidence,” the judges held.

Johnson v. Stanley Convergent Security Systems also raised significant issues at the summary-judgment stage. The dispute revolved around Johnson’s alleged injury of March 2015, but he didn’t file his Petition for Benefit Determination (PBD) until June 2016. Johnson argued that he received a diagnosis several months after the date of injury but within the statutory one-year limitations period. The Board disagreed, ruling that an employee who suffers an acute work injury can’t toll the statute of limitations by claiming he was unaware of the full extent of the resulting injury.

Another fairly meaty opinion at the summary judgment-phase was Taylor v. American Tire Distributers. The Board affirmed the trial court’s denial of summary judgment regarding an issue of first impression. Taylor withdrew his PBD at the mediation stage and then refiled it more than one year after the employer’s last voluntary payment of benefits. The Board reasoned Taylor’s withdrawal of the first PBD was ineffective because it wasn’t a nonsuit, so the case remained active despite the withdrawal.

Frivolous Appeals

Another case surrounding the events at alternative dispute resolution was Burnette v. WestRock. The Appeals Board affirmed the trial court’s decision against enforcing an alleged agreement reached during mediation, where a written agreement wasn’t offered into evidence.

Perhaps the more important ruling in the case, however, was the Board finding WestRock’s appeal frivolous, awarding fees and costs. The appeal had no reasonable chance of success, “given that no evidence was offered at trial regarding the terms of an alleged agreement Employer now asks us to enforce, given that the document itself is unavailable for review, and given that Employer has offered no plausible basis to reverse the trial court’s decision,” the judges wrote.

Incidentally, the Board found two other appeals frivolous in memorandum opinions, Foust v. Pinnacle Delivery Service and Winningham v. Perdue Farms, but didn’t assess costs on the self-represented employees.

Safety Rules

Overall, the Board addressed relatively few causation cases but did release two opinions discussing willful misconduct.

In Butler v. AAA Cooper Transportation, the Board affirmed the lower court’s finding that AAA Cooper failed to prove Butler willfully failed to perform a duty required by law. Butler, a truck driver who either fell asleep or became unconscious while driving, wasn’t acting “intentionally” when the accident occurred.

Also, in Glasgow v. 31-W Insulation Co., the Board affirmed the trial court’s determination that 31-W failed to prove bona fide enforcement of a safety rule, where Glasgow suffered a similar injury previously, but 31-W didn’t discipline him at that time.

Conflicting Experts

Finally, several cases asked the Appeals Board to examine whether trial courts erred in accepting one expert’s opinion on causation and/or impairment over another expert’s conclusion.

This came up in Thysavathdy v. Bridgestone Americas Tire Operations and Baumgardner v. United Parcel Service, but also in these memo opinions:  Lamb v. KARM Thrift Stores, Jimenez v. Xclusive Staffing of Tennessee, and Burleson v. Doyle’s Tire Service. Typically, but not always, the Orman factors came into play in these fact-intensive cases.

Notable among these “battle of the experts” cases was Endsley v. Benchmark Contractors. The Board affirmed the trial court’s order that Benchmark provide additional medical care, including surgery, after giving greater weight to a second-opinion physician over the authorized treating physician’s opinion. The Board clarified that the ATP’s opinion on medical necessity is presumed correct but that the ATP’s opinion about the medical necessity of treatment recommended by another doctor isn’t entitled to the presumption.

Next week, we’ll look at Appeals Board opinions dealing with rules, additional medical benefits, and more.