By Jane Salem, staff attorney, Nashville
I recently wrote a three-part series on the Appeals Board’s work last year, briefly summarizing dozens of appellate opinions.
In contrast, in 2018, the Tennessee Supreme Court Special Workers’ Compensation Panel decided just eight post-Reform Act cases, along with many more “old law” opinions. It’s likely that the “new law” cases will gradually increase in the coming years, as more post-July 1, 2014 cases are appealed. Since there are only eight for now, however, I’ll provide a little more detail about each decision.
But before I delve into the cases, remember my disclaimer: I’m a staff attorney, and I’m writing this solely to remind you about recent case law. Please take the time to read them yourself in their entirety. Thanks.
Constitutionality of the Appeals Board
Perhaps the most significant Panel opinion from last year was Pope v. Nebco of Cleveland, Inc., in which the Panel upheld the constitutionality of the statutes establishing the Appeals Board.
Notably, the Panel rejected the employee’s separation-of-powers argument, reasoning, “Although an additional level of administrative review might delay resolution of a conflict by an article VI court, Tennessee’s workers’ compensation statutory scheme still provides two avenues for judicial review. We again emphasize that a party aggrieved by a decision of the Court of Workers’ Compensation Claims may still appeal directly to the Tennessee Supreme Court rather than filing an appeal with the Appeals Board.”
In the case, the employee became injured while participating in a “mud run” as a member of his employer’s team. The opinion noted the dearth of case law on when recreational and social activities fall within the course of employment, and it yielded guidance on the affirmative defense but not a “rigid test.”
The Panel concluded that participating in the mud run was not work related: “We reiterate that Mr. Pope was not compensated for the time he spent at the mud run and that he was not required to make sales or to network while at the event. He also did not serve in a representative capacity because he was not wearing clothing that identified him as a company employee and he was not required to present himself as such. Moreover, it is undisputed that Mr. Pope’s participation in the mud run was a departure from his normal duty of selling cars.”
Medical causation cases
Green v. Kellogg Companies is instructive regarding the presentation of medical evidence of causation.
In Green, the trial court accepted the treating physician’s deposition testimony that the employee’s preexisting arthritis was the primary cause of his condition rather than work. In contrast, records from the employee’s family practice doctor said the injury “seems to be work-related,” while an IME physician expressed a work-related opinion on an unsigned C-32, which was attached to his report. Importantly, the parties deposed only the treating physician.
The panel wrote that the medical records alone offered “no foundation or explanation for each doctor’s opinions or observations relating to causation,” and that two of the physicians’ records didn’t address the statutory definition of “injury.”
As for the unsigned C-32, the Panel wrote: “Someone marked a box which stated the Employer contributed more than fifty percent (50%) in causing Employee’s injury. However, we find that the statement in the unsigned and unexplained form, which was an addendum to the report, does not have the degree of trustworthiness or reliability necessary to rebut the presumption of correctness of the treating physician’s opinion as to causation.”
Next, in Thysavathdy v. Bridgestone Americas Tire Operations, the Panel determined that the Appeals Board decision reached the correct result, so the Panel adopted the Board’s decision as its own — an unusual tip-of-the-hat to the Board.
The Board affirmed the trial court’s ruling that the employee’s expert’s opinion did not rebut the treating physician’s. The Board found it troubling that employee’s expert said that the injured worker’s condition was “multifactorial.”
Then in Panzarella v. Amazon.com, Inc., the Panel affirmed the Appeals Board opinion holding that an employee failed to satisfy his burden of proof.
The Panel wrote, “Dr. Vaughn did not testify within a reasonable degree of medical certainty, either directly or indirectly, that Mr. Panzarella’s work activity more likely than not contributed more than fifty percent in causing the injury, considering all factors. Dr. Vaughn acknowledged that there were other possible causes of the fall, such as a leg cramp or obesity. Mr. Panzarella was not required to disprove all possible causes of his injury, but he was required to prove that the injury arose primarily out of his employment.”
Supreme Court Panels released two cases in this category.
First, in Harrison v. General Motors, LLC, the trial court found the employee wasn’t permanently and totally disabled, principally weighing competing vocational expert testimony.
The opinion seems to suggest that sometimes less is more. The Panel wrote, “Here, the trial court assigned greater weight to Ms. Bramlett’s opinion—based solely on the testimony of the treating medical physician—than to Ms. Stoller’s opinion—based on additional, less-reliable sources, i.e., a note from a non-testifying physician and a report from a non-physician. We conclude the trial court did not abuse its discretion in accepting the opinion of Ms. Bramlett.”
The other permanent disability case is Goodman v. Schwarz Paper Co., which presented complex medical facts and varying applications of the AMA Guides.
The trial court accepted the treating physician’s impairment rating over the independent medical examiner’s. The Panel affirmed, reasoning, “In this case, the trial court observed that Dr. Masterson performed straight leg testing and motor strength testing at each examination of Employee; that he tested Employee’s reflexes at the appointments immediately before and after he released her on April 9, 2015; and that the EMG nerve conduction study he ordered in May 2015 supported his conclusion that Employee had non-verifiable radicular complaints (Class 1 impairment) and that she did not have radiculopathy (Class 2 impairment). We conclude that the trial court’s reasoning is sound and that the evidence does not preponderate against its findings.”
Fees; statutory employer
In Garassino v. Western Express, Inc., the trial court agreed with the employee’s independent medical examiner’s impairment rating and ordered the employer to pay the cost of the exam. The Appeals Board concluded this was error.
The Panel agreed, explaining, “Our courts have held that parties cannot recover discretionary costs for expert witness fees for preparing for depositions or trial, no matter how reasonable and necessary these fees are.”
Finally, in Osborne v. Starrun, Inc., a truck driver whose employer had no workers’ compensation insurance became injured at a manufacturer’s facility. He asserted the manufacturer was liable as his statutory employer. The trial court disagreed at an expedited hearing and later granted summary judgment for the employer.
The Panel affirmed, agreeing with the lower court’s analysis applying the three factors from the full Supreme Court in Lindsey v. Trinity Communications.
The Panel observed, “Osborne urges the Court to hold that the Workers’ Compensation Act’s goal of shifting the burden of work-related injuries from workers, their families, and society to employers entitles him to receive workers’ compensation benefits from [the manufacturer]. But Osborne’s request requires more than an equitable construction of the statute; it requires us to rewrite it. We decline to do so.”