By Sarah Byrne, Staff Attorney, Nashville
The Tennessee Supreme Court held oral arguments Oct. 4 in Christopher Batey v. Deliver This, Inc. Issues included the admissibility of the Physician Certification Form for “extraordinary relief” under the escape clause in Tenn. Code Ann. section 50-6-242(a)(2) and the definition of “extraordinary.”
But the primary issue was whether the pre-reform “meaningful return to work” analysis is applicable to Tenn. Code Ann. section 50-6-207(3)(B), where an injured employee is entitled to increased benefits if he “has not returned to work with any employer” or has returned to work earning less.
Deliver This contended “any employer” means an employee is precluded from receiving increased benefits or extraordinary relief if he didn’t reasonably attempt to return to work somewhere, not just for the pre-injury employer.
“The [pre-reform] courts held that at some point the employee has to take the initiative to go back to work,” said Michael Haynie, counsel for Deliver This. “So the question is, how does that concept apply under section 50-6-207(3)(B)?”
In Batey, Judge Thomas Wyatt of Chattanooga awarded extraordinary relief after finding the employee eligible for increased benefits because he could not return to work for Deliver This. The Appeals Board identified as harmless error the trial court’s application of a higher burden of proof to the factors in section 242(a)(2)(A)-(C) and the court’s interpretation of the word “occupation” on the Physician Certification Form to mean the employee’s pre-injury job rather than the type of work performed.
At oral arguments, Haynie, of Manier & Herod in Nashville, asserted the meaningful return to work analysis includes “any employer” under section 207(3)(B) for the same reason courts applied the analysis to the pre-injury employer under pre-reform law.
“The Courts determined it didn’t seem right to reward an employee for the employee’s unilateral conduct, which resulted in the separation of employment,” said Haynie. “An injured employee cannot increase the maximum award by unreasonably refusing to return to work in a position for which he or she is qualified and able to perform within the restrictions.”
Haynie asserted Batey’s deposition testimony (that he had not sought other employment) and his lack of permanent restrictions demonstrated an unreasonable failure to regain employment.
Russell Thomas, counsel for Batey, highlighted the trial court’s factual finding that the employee sought work while receiving unemployment benefits — a finding based on Batey’s live testimony. “He had signed up for three jobs every week when he was drawing unemployment and had no offers,” he said.
Thomas, of The Thomas Law Firm in Murfreesboro, further contended that the doctor in effect imposed permanent restrictions by identifying physical limitations that essentially prevented Batey from performing his pre-injury occupation. The treating physician, Dr. Melvin Law, completed a Standard Form Medical Report (Form C-32) detailing these limitations.
“I asked Dr. Law, did he see these as the guidelines Mr. Batey should follow?” said Thomas, “And were these permanent? And he said he would advise him not to do these things…. So we have the uncontradicted testimony of the authorized treating physician, who found substantial work conditions that Mr. Batey [could not] consistently perform and a 14 percent medical impairment.”
“Both sides had vocational testimony,” added Thomas. And “the two opinions converged” at 66 and 69 percent. So, limiting Batey’s award would have provided him far less than the experts’ vocational disability ratings, an inequity the trial court considered when awarding extraordinary relief.
Certification form: hearsay?
At trial, Batey used the Physician Certification Form to prove he could no longer perform his pre-injury occupation. Deliver This stipulated to the form’s inclusion only “to the extent that it met the technical requirement of the statute” but argued its content constituted hearsay.
This prompted a question from the high court: “Does the statute itself not create an exception to the hearsay rule?”
“No,” said Haynie. “I don’t believe that it creates an exception.” Haynie referenced the Standard Form Medical Report statute, which expressly creates a hearsay exception. “The C-32 by statute has a specific procedure for becoming admissible,” he said. “There is no similar procedure for the Physician Certification Form.”
Deliver This contended the treating physician didn’t substantively certify that Batey couldn’t perform his pre-injury occupation. On the form, the doctor handwrote, “This is per my testimony by deposition and the job description in the deposition.”
Haynie distinguished the statutory requirement’s substance from its form, saying the substance of the requirement is that the doctor must certify the employee cannot work at his pre-injury occupation due to permanent restrictions. But meeting the form of the requirement only requires presenting a Bureau form.
“The content of the form is hearsay,” said Haynie. Without it, you look to the doctor’s deposition, which contains two facts showing Batey did not meet the substantive requirement, he said. “One, there were no permanent restrictions based on the C-32. And number two, … Mr. Batey was unable to return to work at his job at Deliver This.”
“In the absence of any restrictions, then what from a substantive standpoint did Dr. Law certify to?” asked Haynie. “He certified employee is unable to return to work at Deliver This [when] the statute requires an inability to return to a pre-injury occupation.”
The justices asked Thomas about the doctor’s handwritten sentence referencing Batey’s job description at Deliver This. He responded, “It went to whether or not he could be a delivery driver, lifting up to 60 pounds and packing and loading and unloading, and so forth.”
Haynie also argued Batey’s claim is not “extraordinary.” He cited the definition as “going beyond what is usual, regular, or customary” or “exceptional to a very marked extent.” He posited that the lower courts conflated “extraordinary” and “inequitable” instead of considering them separately.
“What is the objective, measurable criteria that this goes beyond a great deal of workers’ compensation cases, has the ‘wow factor’ to it?” Haynie asked, noting, “The statute doesn’t lay it out.”
The arguments in this case marked the first time that the full Supreme Court accepted and heard a workers’ compensation case since the Reform Act took effect in 2014.