By Jane Salem, Staff Attorney, Nashville
Welcome back to the recap of the Appeals Board’s activities for the second half of 2017. Don’t forget that waiver you mentally signed last week.
The Reform Act ushered in greater formality and (we hope) fairness into Tennessee workers’ compensation practice via the imposition of, or greater adherence to, many rules: the Rules of Civil Procedure and Evidence, as well as sets of administrative and court rules. Several cases involving rules made their way before the Appeals Board in the second half of 2017.
The Mediation and Hearing Procedures came into play in Smith v. La-Z-Boy. The Board affirmed the trial court’s denial of La-Z-Boy’s motion to dismiss the request for expedited hearing, where Smith filed the hearing request within 60 days after issuance of a dispute certification notice but filed the supporting affidavit and other documentation the next business day. The Board reasoned that the rule states the hearing request must be “accompanied by” supporting documentation, meaning “in association with” and not necessarily concurrently or contemporaneously with the request.
In Schmidt v. City of Dickson, the Board affirmed the trial court’s decision to admit into evidence correspondence from a physician that was not filed ten business days in advance of the expedited hearing under the Mediation and Hearing Procedures. The judges reasoned, “The regulation does not provide that medical records filed less than ten days from the hearing date cannot be considered; rather, it states that the untimely filing of medical records may result in their exclusion.”
The Board affirmed another call on admissibility in Meier v. Lowe’s Home Centers. It’s a memorandum opinion; yet sometimes, they contain useful nuggets. The trial court refused to admit a C-32 Medical Report because it didn’t contain a statement of the physician’s qualifications or a supporting affidavit. The Board rejected Meier’s contention that her “substantial compliance” was sufficient.
The Board discussed the application of rules of the Drug-Free Workplace Program and their interface with discovery rules in Guinn v. Barnard Roofing Co. The Board affirmed the trial court’s decision denying a motion to compel Guinn’s estate to sign a medical release allowing a second toxicology screening of his blood sample, because Barnard Roofing didn’t show that the lab required a release or a court order to perform the additional testing.
Additional Medical Benefits
The Board released several cases offering guidance on when additional medical benefits are appropriate, as well as an employer’s options when it wishes to terminate them.
First, in Limberakis v. Pro-Tech Security, the Board affirmed the trial court’s order that Pro-Tech provide a new panel in an accepted claim where the authorized treating physician stated Limberakis didn’t need additional treatment and refused to schedule further appointments despite his ongoing symptoms. Presiding Judge Marshall Davidson dissented, questioning whether under the ruling, employers might unreasonably be required to pay for successive physicians who reach the same conclusions as the first ATP.
The Board revisited Limberakis in Baker v. Electrolux. The case presented similar facts: the trial court ordered a second panel of physicians for Baker to select a new ATP. The Board reversed. It distinguished Limberakis because in that case, the ATP refused to schedule additional appointments, while in Baker, Electrolux stood “ready and willing to authorize additional reasonable and necessary medical treatment” with the ATP.
Another case involving additional medical benefits was Ducros v. Metro Roofing and Metal Supply Co., although here the issue wasn’t the employee’s entitlement to them but with whom. The Board reversed the trial court’s determination of which authorized provider is the authorized treating physician in an accepted claim. The Board was displeased with the employer’s failure to provide panels at the outset.
As for the “how-to” when an employer wishes to terminate, in Noel v. EAN Holdings, the Board outlined the options for parties who choose to seek relief from courts before the compensation hearing. One option is to file an interlocutory motion under section 50-6-239(d) and Tenn. Comp. R. & Regs. 0800-02-21-.14(1), while another option is to file a motion for summary judgment under Rule 56 of the Rules of Civil Procedure. In this case, the Board affirmed the trial court’s denial of a motion to terminate benefits, reasoning that the records EAN Holdings relied on were equivocal as to the need for additional benefits.
Further, in Tapley v. Transport National, the Board affirmed the trial court’s order holding that an authorized treating physician’s request for “consult” with a named pain-management physician did not constitute a “referral.”
Miscellaneous Memo Opinions of Interest:
- In Beecher v. McKesson Corp., the Board affirmed the trial court’s grant of summary judgment where Beecher didn’t file a response to the motion and failed to present any evidence countervailing McKesson Corp.’s experts’ opinions that her work activities were not the primary cause of her condition.
- In Betances v. Brock Services, the Board affirmed the trial court’s order of temporary disability benefits after finding Brock Services didn’t terminate Betances for cause by violating its attendance policy.
- In Burleson v. Germantown Partners Supercuts, the Board affirmed the trial court’s finding, based largely on Burleson’s credibility, that he failed to prove a specific incident resulting in injury, and therefore his claim wasn’t compensable.