Panel to clarify perm total analysis

By Jane Salem, staff attorney, Nashville

Did the Tennessee Workers’ Compensation Appeals Board err by using the “meaningful return to work” analysis in determining the propriety of an award of permanent total disability benefits, when that analysis traditionally applies to permanent partial disability benefits?

The Special Workers’ Compensation Panel of the Tennessee Supreme Court will decide that question and other significant issues regarding the Reform Act, after conducting oral arguments in three post-July 1, 2014 cases in Knoxville on Feb. 25.

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Dissecting the proper perm total analysis

In Duignan v. Stowers Machinery Corp., Duwan Duignan, a parts delivery driver, suffered a low-back injury. Duignan is a high school graduate and was 61 years old at the time of trial.

After he reached maximum medical improvement, Stowers offered an accommodated position in its warehouse. Duignan, who’d worked in warehouse before albeit approximately 20 years ago, declined. He said the job would require him to either exceed his restrictions or to rely excessively on coworkers for lifting and pushing heavy objects.

Judge Pamela Johnson awarded permanent total disability benefits, which under section 50-6-207(4)(B) applies to an injury that “totally incapacitates the employee from working at an occupation that brings the employee an income.”

The Appeals Board reversed. The Board was critical of Duignan’s decisions not to look for work after the injury and declining Stowers’ accommodated position.

His lawyer, Link Gibbons, said the Board overemphasized whether those actions were reasonable and didn’t give enough consideration to other factors.

Gibbons said, “The standard for permanent total disability benefits essentially has not changed since 1919 in the original version of the Workers’ Compensation Act.  . . .  We have basically 100 years of workers’ compensation law to look at, and I’m not aware of a single case where the return to work applied.”

The only authority Stowers cited said the meaningful return to work analysis is “instructive” in permanent total disability cases. But that case was about increased permanent partial disability benefits using the multipliers in section 207(3)(D)(i), Gibbons argued.

Gibbons said Judge Johnson correctly considered the factors in Roberson v. Loretto Casket Co., specifically: the employee’s skills and training, education, age, local job opportunities, and the capacity to work at the kinds of employment available in the worker’s disabled condition.

Gerard Jabaley, Stowers’ counsel, argued that the meaningful return to work analysis amounts to a reasonableness standard.

The Board said Duignan acted unreasonably because “he didn’t try,” Jabaley said. Meanwhile, Stowers made an effort by offering the accommodated position.

But Duignan “didn’t give us a chance, and he didn’t give himself a chance.”

Was extraordinary relief appropriate?

In Wright v. National Strategic Protective Services, Kenneth Wright injured his neck while pulling on a bullet-proof vest. Ultimately, the injury required fusion surgery.

Judge Lisa Lowe accepted the authorized treating physician’s 24-percent whole-body impairment rating over the independent medical evaluator’s 15-percent rating. One vocational expert assessed him as 90-percent disabled; another said 80-90-percent.

Judge Lowe awarded 275 weeks of permanent partial disability benefits, also known as “extraordinary relief” under Tenn. Code Ann. § 50-6-242.

National Strategic argued Judge Lowe abused her discretion because she relied in part on non-work-related conditions, specifically Wright’s Parkinson’s disease, gait difficulty and head-jerking.

Section 242 requires “clear and convincing evidence.” However, “There’s a wealth of ambiguity concerning the relatedness of certain neurological disorders such as Parkinson’s,” said Garett Franklyn, National Strategic’s lawyer.

John Agee, Wright’s lawyer, countered that his client had no limitations before suffering a “career-ending injury.” Wright was left with substantial restrictions and hadn’t returned to work.  Further, none of the doctors found him less than 10-percent permanently disabled.

Agee said the trial court reached “the right result, if you look at the evidence and the record. And it’s the right result, period.”

National Strategic also challenged the admissibility of the physician certification form, arguing that it’s hearsay. Judge Lowe admitted the form, characterizing it as falling within hearsay exceptions as either a medical or business record, or otherwise found it self-authenticating under the statute.

“Under the medical records exception, the form does nothing in terms of ‘diagnosis and treatment,’” said Franklyn, quoting the evidence rule. Further, the form was executed long after the doctor’s active treatment ended. Franklyn added that, while the statute explicitly states that another widely-used form, the C-32, “shall be admissible,” language about admissibility for the certification isn’t in section 242.

For his part, Agee said the right to seek extraordinary relief is “a pretty important piece of the Workers’ Compensation Act,” and the certification is “a requirement of the law.”

Pro se worker: the law “didn’t work”

Finally, Ameenah House, a self-represented employee, told the Panel her story of suffering two back injuries while working for Amazon.com. The first was being hit by a motorized squeeze machine. The second was an assault on the job by a co-worker.

Judge Thomas Wyatt concluded that House didn’t suffer compensable injuries because she relied on opinions from experts who didn’t address causation.

House conceded to the Panel that she didn’t know what kind of evidence she needed to present at trial. She asked the Panel why the Workers’ Compensation Law “didn’t work for me” after she got hurt at work.

“It depresses me that I can’t work. It’s not that I won’t work; I can’t,” she said.

Amazon’s counsel, Kristen Stephenson, confirmed that House didn’t file a trial transcript with the Panel.

Senior Judge Don Ash asked House if she played sports in her youth, observing that her predicament is “like playing baseball and not knowing the rules.”

Justice Sharon Lee said the Panel is bound by certain rules and thanked House for presenting her case.

House asked for mercy as she returned to counsel table. She said, “I’m not going to be a lawyer,” drawing laughter from the Panel and the audience.

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