By Jane Salem, Staff Attorney, Nashville

Welcome back to my recap of 2018 Appeals Board cases. In the last post, I highlighted some of the major opinions involving causation. In this edition, I’ll remind of the cases involving medical and disability benefits and defenses.

Don’t forget to read the full-text of every case. I’ve given links; come on, there’s no excuse. And please don’t cite to this blog. Thanks.

Turning first to medical benefits, in Summers v. BrightSpace Senior Living, the Board affirmed the trial court and held that an employer can’t rely on provision of some, but not all, of an employee’s claimed injuries as satisfying its statutory obligation to provide medical benefits. In the case, the employee reported the obvious injury a few days after the accident but waited two weeks to report additional injuries.

Further, in Christmas v. Morristown Logistics, the Board rejected an employer’s argument that compensation may be suspended for an employee’s failure to follow a treating physician’s instructions. However, the Board stated that it “need not resolve that issue here” because the facts didn’t establish that the employee failed to heed the doctor’s advice.

The Board issued three opinions involving temporary disability benefits; all are significant.

In Heard v. Carrier Corp., the Board affirmed the lower court’s denial of temporary partial disability benefits, where the employee’s layoff was unrelated to the physical requirements of her restricted position or the employer’s ability to accommodate her restrictions, but she was selected for the layoff based on a collective bargaining agreement, and she was treated no differently from other similarly-situated employees.

In another case involving the employee’s dismissal, Womble v. Uncle Dave’s Auto Repair, the Board examined temporary disability benefits after the worker’s alleged termination for cause. The trial court found that he didn’t violate a written policy, but the Board held that workplace rules don’t need to be in writing to be enforceable.

The Board approved the use of offsite transitional work placements for light-duty employees in Lasser v. Waste Management. The Board agreed with the lower court that the employee’s rationale for declining a job at a nonprofit agency was “purely personal” and rejected his characterization of the placement as a “device” to avoid payment of temporary disability benefits.

As for permanent disability benefits, the Board issued two meaty opinions. Both of these cases are under further review, by the way.

In Batey v. Deliver This, the lower court granted extraordinary relief. The parties disputed whether the employee could no longer perform his “pre-injury occupation.” The trial court held this meant he was unable to do “the job he held at the time of the injury,” but the Board agreed with the employer that it means the “type of work” done as the employee’s “usual or principal work.” The full Supreme Court will decide the issue in 2019.

The Board reversed the lower court’s permanent total disability ruling in Duignan v. Stowers Machinery Corp. The Board agreed with the employer that its accommodated  a position, which prohibited the employee to use his cane at work, was reasonable because the worker’s physician recommended against the cane. The Board was also critical of the employee’s lack of effort to look for work elsewhere, post-injury. A Supreme Court panel will hear oral arguments in this case in Knoxville on February 25.

Defenses

In Oglesby v. United Parcel Service, the Board held that a “reasonable difference of opinion as to how a safety rule is to be interpreted doesn’t constitute willful misconduct.”

The employer in Iboy v. Kenten Management argued that the Supreme Court “usurped the power of the legislature” when it created a four-part test for both willful misconduct and refusal to use a safety appliance in the landmark Mitchell v. Fayetteville Public Utilities. The Board disagreed, noting that the legislature could’ve changed the Mitchell standard when reforming the law in 2013, but it didn’t.

In Burnett v. Builders Transportation, the lower court rejected the employer’s defense, finding at the interlocutory stage that an employee used a safety device, even though there was circumstantial evidence to the contrary. The Board affirmed.

Finally, the Board issued two opinions involving drug-free workplaces.

In Polk v. Delta Faucet, the Board found the lower court erred in determining whether and when an alleged incident became an “OSHA-recordable event,” triggering the drug-testing requirement. Then in Kizer v. Express Services, the trial judge admitted into evidence a TOSHA investigator’s report. The Board held this was error (albeit harmless) because the Rules of Evidence, Rule 702, require that the proponent of expert testimony establish the “knowledge, skill, experience, training or education” of the expert, which didn’t occur here.

Wait… isn’t that an evidence case? Probably. But it also segues nicely into the next installment of this series.

Up next: evidence, civil procedure and everything else.