By Jane Salem, Staff Attorney, Nashville
Hello again. In the last post, I promised a discussion of 2018’s significant evidence opinions from the Appeals Board, along with civil procedure cases, and, well, everything else.
Starting with evidence, a pair of cases discussed the admissibility of the C-32 Standard Form Medical Report.
In Watson v. Catlett Construction, the Board affirmed the exclusion of C-32s proffered by a self-represented employee, where he failed to file originals and they weren’t accompanied by the required qualifications of the physicians. However, in Quarles v. Fedex Ground, the trial court allowed a C-32 into evidence that didn’t have an attachment of the expert’s qualifications, but the court nonetheless rejected the expert’s causation opinion. The Board found no abuse of discretion.
The Board further agreed with the trial court that an employee’s attorney shouldn’t be allowed to testify regarding a purported oral settlement agreement in Peppers v. ThyssenKrupp Elevator Corp.
In Eaves v. Ametek, the Board concluded that the Rules of Evidence apply to cases in which the trial judge makes a decision on the record, just as they apply for in-person hearings.
Importantly, in Eaves, the injured worker offered medical bills into evidence without the requisite foundation or proof as to whether they arose from reasonable and necessary treatment. The Board held the trial court erred in admitting the bills. Reinforcing the point, the Board cited Eaves to find error where the lower court admitted unauthenticated bills into evidence in Miller v. Logan’s Roadhouse.
The civil procedure cases addressing summary judgment are probably the most newsworthy, since 2018 saw a distinct increase at the trial court level of these motions.
The Board affirmed the lower court’s denial of summary judgment in Rye v. Calsonic Kansei North America, reasoning that at the summary judgment stage, a court can’t weigh evidence or assess credibility.
The Board vacated the lower court’s denial of summary judgment in Johnson v. Loomis Armored. The lower court held it would be “unjust” to rule on the merits on the motion because the employee hadn’t completed treatment and the court hadn’t entered a scheduling order. The Board, however, focused on the language of Rule 56, which says a party may move for summary judgment “at any time.”
As for case management, in Love v. Delta Faucet, the Board upheld the trial court’s discretionary decision to continue a compensation hearing but encouraged judges to make express findings in line with the “extraordinary circumstances” standard.
In Yeaman v. Kindred Health Care, the Employer moved to dismiss for failure to prosecute, after a mediator had filed a Notice of Withdrawal of the Petition for Benefit Determination, and two years passed before the employee filed another PBD. The lower court denied the motion, which the Board upheld. The Board reasoned that, in the two-year interim, either party could’ve investigated the claim, requested medical records or taken other actions to move the claim forward, but neither did.
In 2016, lawmakers amended section 50-6-226(d)(1)(B) to allow for awards of attorneys’ fees on wrongful denials. Last year, a few cases on this amendment finally came before the Board.
First, in Thompson v. Comcast, the Board held that an employer may be liable for reasonable fees and costs when it “fails to timely initiate any of the benefits to which the employee is entitled under this chapter.” The Board declined to determine the meaning of the word “wrongful” and cautioned: “Given the uncertainties inherent in litigation, the limited issues typically addressed at expedited hearings, the fact that discovery and medical proof often are incomplete at an interlocutory stage of a case, the standard of proof that applies at expedited hearings, and the fact that a trial judge’s determinations at an interlocutory hearing are subject to change at any time prior to the entry of a final compensation hearing order, a decision to award attorneys’ fees and expenses at an interlocutory stage of a case should be made only in extremely limited circumstances.”
The trial court cited Thompson as its basis for denying fees in Simpson v. City Auto, ruling that the case didn’t fall within “extremely limited circumstances” to justify fees at the interlocutory stage. The Board affirmed.
In Andrews v. Yates Services, the Board held that, when determining whether a denial was “wrongful,” a trial court should consider whether an employer’s decision was “erroneous, incorrect, or otherwise inconsistent with the law or facts at the time the denial decision was made.”
Then in Travis v. Carter Express, the Board vacated a fee award, concluding that the trial court didn’t correctly analyze the request because it didn’t consider whether the case fell “within the limited circumstances supporting an award of attorneys’ fees and costs at an interlocutory stage.”
As for fees based on unpaid medical bills under section 50-6-226(a)(1), the Board found the trial court’s award premature in Bowlin v. Servall and reversed.
In Travis v. Carter Express, (yes, I know I already mentioned this opinion ̶ it’s that important), the Board ruled on an issue of first impression that a prospective agreement signed before the work injury waiving any workers’ compensation claim an employee might have doesn’t constitute an affirmative act to pursue benefits for this injury in another state or a knowing and willful acceptance of benefits in another state.
Moving on, in Carpenter v. Southern Transit, the Board affirmed the trial court’s ruling regarding the existence of an implied contract of hire to determine which alleged employer was liable.
At the trial court level in Tennessee workers’ compensation practice, the majority of evidentiary hearings are interlocutory. A handful of cases come before the Court and Board more than once before they are finally resolved. Watson v. Catlett Construction, mentioned above, came before both courts twice last year. In the second appeal, the Board explained the applicability of the “law of the case” doctrine.
The Board discussed stipulations in two opinions.
First, the Board reversed the lower court’s denial of permanent disability benefits in Demotte v. United Parcel Service, where the employer’s counsel stated at a scheduling hearing that “there is no dispute about the . . . rating,” but then counsel challenged the rating at trial. The Board reasoned that parties should be bound by the statements and agreements made by their attorneys in open court.
Second, in Albright v. Hercules HVAC Pads, the Board affirmed the trial court’s denial of temporary disability benefits at the interlocutory stage, holding that counsel’s “stipulations” at trial weren’t binding but rather were ambiguous or incomplete statements.
The Board reiterated its disdain for bifurcated trials in Foriest v. United Parcel Service.
As for self-represented litigants, in Jackson v. Transwood, a self-represented employee informed the trial court of his limitations in reading and writing. The Board held he nonetheless remained obligated to prove his case, whether or not he was represented by counsel.
Finally, in Washington v. UPS Ground Freight, the Board upheld a lower court’s decision not to recuse himself, rejecting a self-represented employee’s characterization of the judge as a “bully.”
Whew! That’s a lot of cases. Clearly, 2018 was another productive year for the Board. The docket is just as full in the coming year. We’re looking forward to more guidance from the Board.
Have a happy and safe 2019.