By Jane Salem, Staff Attorney, Nashville
Happy New Year!
Following tradition, it’s an appropriate time to look back at last year’s Appeals Board opinions in a series of blog posts.
This post will recap the opinions on causation. The next will look at medical, temporary and permanent disability benefits, and defenses. After that, we’ll focus on opinions that touched on evidence, civil procedure and “pot pourri” ̶ whatever’s left. Kind of like those holiday leftovers in your refrigerator; the cases are still good, but it might be time to toss the eggnog.
Before I get started, please remember that I’m a staff attorney and not a judge. This is merely my reading of what’s important in the cases, as a reminder of the Board’s rulings from last year. Most appeals present multiple issues, and you might see something completely different in a case than I did.
In other words, I offer these articles simply to remind you of some of the cases and issues the Board tackled in 2018, but please take the time to re-read the cases.
In Muncy v. Premium Distributors, the trial court granted additional medical benefits, where the employer asked a doctor in a causation letter about whether the employee’s “current complaints remain a primary result” of a work injury. The trial court disregarded the physician’s opinion because the physician hadn’t seen the employee in two years. The Board affirmed.
In Lurz v. International Paper Company, the Board affirmed, rejecting the employer’s interpretation of video footage that the employer asserted showed the employee was injured before the alleged accident. The employer didn’t have an expert to back its argument. The Board reasoned, “parties and their lawyers cannot rely solely on their own medical interpretations of the evidence to successfully support their arguments.”
In White v. G&R Trucking, the Board affirmed the trial court’s acceptance of one expert’s causation opinion over another’s, where the court found contradictions within the latter’s testimony. Likewise, the Board affirmed the trial courts in Patterson v. Huff & Puff Trucking and Wallis v. Baptist Memorial Hospital, both of which presented conflicting expert opinions on causation.
Joiner v. United Parcel Service was yet another case with dueling expert causation opinions. The Board took issue with a compensability ruling, where the expert said that the alleged conditions “stem from” a work incident, and the expert failed to offer a “measure of contribution,” i.e. a percentage.
Owens v. Sitters, Etc. presented a similar issue of whether a physician’s opinion satisfied the statutory definition of a compensable injury. The Board reversed, reasoning that the physician’s opinion, which the lower court accepted, was insufficient because he relied on the employee’s history to “assume” the incident caused the employee’s condition.
Further, the Board clarified the requirements for compensability of heart attack cases under the Reform Act in Mitchell v. Bungee North America. The lower court found genuine issues for trial and declined to grant summary judgment; the Board affirmed.
As for other causation matters, the Board applied the longstanding personal comfort doctrine in Jacobs v. Bridgestone Americas Tire Operations. The Board affirmed the lower’s ruling on compensability, where the employee became injured on a smoke break while working off-site for the union under a collective bargaining agreement. It was significant to the Board that the injured worker took the break immediately following the performance of the union duties.
The Board affirmed in Bullard v. Facilities Performance Group. The lower court ruled that an employee’s injuries from exiting a building, missing a step and falling to the concrete weren’t idiopathic. The Board rejected the employer’s arguments that she knew the step existed, that she had navigated the step many times, that the step was free from defects, and that she described the step as “marginal,” reasoning that arguments sounding in negligence aren’t a defense or even a factor in determining whether a claim is compensable.
In the sole case last year involving the direct and natural consequence rule, the Board affirmed the lower court ruling in Ogden v. McMinnville Tool and Die that injuries from an employee’s falls while recuperating from work-related surgery were related to the initial injury. The Board agreed the employee was exercising reasonable caution under the circumstances.
Moving on, this past year, the Board released a trio of cases involving mental injuries.
In Creasman v. Waves, the Board affirmed the lower court ruling that a psychiatrist was more qualified than a neurologist to offer a causation opinion on alleged psychiatric injuries, and where the psychiatrist “comprehensively documented his evaluative process and the information he considered,” while the other doctor didn’t.
In Edwards v. Fred’s Pharmacy, the Board affirmed the lower court’s determination that a workplace assault aggravated an employee’s preexisting mental conditions, in accordance with the lone expert’s opinion on the question.
The Board also affirmed an award of temporary disability benefits in McLaurin v. AT&T Services, where the employee alleged a mental injury and the trial court based its decision, in part, on the authorized physician’s determination that the employee was unable to work. The ATP’s opinion agreed with that of an unauthorized psychologist. The Board held that although a psychologist isn’t competent to offer testimony concerning medical causation and the permanency of any impairment, his testimony might be relevant to a trial court’s determination of an employee’s ability to return to work as it relates to entitlement to temporary disability benefits.
Admittedly, McLaurin touches on who may give a causation opinion, but the case is really more about temporary disability benefits. The next post will discuss last year’s cases dealing with benefits.
Up next: benefits and defenses.