By Jane Salem, staff attorney, Nashville
Happy New Year!
It’s become tradition for me to kick things off with a recap of the previous year’s appellate cases.
But first, another tradition: the disclaimer. Remember that I’m a staff attorney, and I’m not speaking on behalf of the Court of Workers’ Compensation Claims. What follows is just my take on the Supreme Court Special Workers’ Compensation Panel and Appeals Board opinions. What I think is the most important aspect of a case might differ from your reading of it. The purpose of these articles is merely to remind you of the various issues the appellate courts examined in the past year, for you to please re-read and add to your arsenal.
This week I’ll look at cases from the Appeals Board presenting issues of permanent disability benefits, medical causation, and medical and temporary disability benefits.
Turning first to permanent disability benefits, I’m giving this top billing because it’s a fairly new topic. By that I mean, since the reform in 2014, it took a few years for cases with these issues to make their way before the courts.
In Wright v. Tenn. CVS Pharmacy, the Board rejected an employer’s argument that, to be eligible for increased benefits, the employee must have made an effort to return to work.
The Board upheld a grant of permanent total disability benefits in Stocklin v. Barrett Distribution Ctrs. The judges held that, although no physician gave the opinion that the employee was unable to physically perform any job, the award was nonetheless proper because the employee introduced substantial lay and expert vocational testimony from which the court could conclude that his injuries totally incapacitated him from working.
Now let’s look at the many medical causation cases.
In the first heart-attack case to come before the Board on the merits since the Board’s creation, the judges affirmed the lower court’s determination that a deceased worker’s heart attack didn’t arise primarily out of employment, because no evidence suggested physical exertion or a stressful event on the date of injury. The case is Mitchell v. Bunge N. Am.
The lone hernia case was Sustersic v. Lowe’s Home Ctrs. The trial court found that the medical proof didn’t establish that the hernia didn’t exist before the work incident, and the employee’s physician gave conflicting statements on causation. The Board affirmed.
The Board agreed that an employee failed to rebut the presumption of correctness afforded to an authorized treating physician, where the employee’s expert didn’t document any clinical findings of radiculopathy, and the court rejected the doctor’s explanation that, if an injured worker’s description of the work accident and resulting symptoms sounded “reasonable,” he accepted it as the cause of the condition. The case is Hollis v. Komyo N.A.
Likewise, in Blevins v. S. Champion Tray, the Board affirmed the trial court’s conclusion that an employee rebutted the presumption of correctness afforded to an authorized treating physician’s causation opinion regarding the aggravation of a preexisting condition. The physician based his opinion in part on his impression that “no work incident” occurred, which was inconsistent with the employee’s testimony and the medical records.
In Gilbert v. United Parcel Serv., the Board held that a referral physician’s causation opinion isn’t entitled to a presumption of correctness if he isn’t chosen from a panel of physicians.
In Miller v. Old Folks Mission Ctr., the Board held that, at an expedited hearing, where the employee’s physician stated that he considered her condition to be a “work-related injury,” the employer merely argued that the doctor’s opinion was based on inadequate or incorrect information as to the nature of the employee’s work duties, but the employee offered unrebutted testimony regarding the repetitive nature of her work, the totality of the evidence supported an order for the initiation of benefits.
In Clay v. Signature Healthcare, the Board affirmed the trial court’s decision to disregard an expert’s medical causation opinion at a compensation hearing, where the expert “vacillated between accepting Employee’s history and believing her condition to be work-related and doubting Employee’s truthfulness and believing her condition was not work-related.”
Further, in Holdway v. Lakeside Behavioral Sys., the trial court correctly found no medical causation in an alleged mental injury case, where the employee reported similar symptoms approximately eight months before a workplace assault, and the trial court credited the causation opinion of an expert who had a more complete history.
In Glenn v. Sears Outlet Stores, the Board held that, where the authorized treating physician’s records state that the employee “sustained work related injuries,” the employee said throughout the course of treatment that his “issues stem from the work injury,” and the records documented a description of the mechanism of injury consistent with the employee’s testimony, this evidence satisfied the standard for relief at an expedited hearing.
A commonality among some of these medical causation/competing expert cases is consideration of the Orman v. Williams Sonoma factors. In Smith v. Galloway Constr., the Board held that detailed analysis of each Orman factor is unnecessary.
Also of interest from Smith: the Board found no abuse of discretion when the trial court ordered a panel of neurologists but the referral didn’t specify the type of medical specialty, rejecting the argument that the court “inappropriately exercised medical judgment.”
Which segues nicely into cases about referrals and medical benefits.
The Board agreed that the court properly applied the Community Rule in a case where the referral physician’s office was located twenty-five miles from the employee’s home.
The thornier issue in this case, Rhodes v. Amazon.com, was the sufficiency of the referral itself. The Board reversed the lower court to hold that, where the employer directed the authorized treating physician to designate a particular specialist for all referrals, this didn’t invalidate the referral.
In Montgomery v. Mitchell Indus. Tire Co., the Board held that a trial court properly ordered an employer to honor a psychiatric referral from the authorized physician, where the employer offered no evidence that the employee didn’t suffer from symptoms of depression but merely argued that his “subjective history was an insufficient basis” to support the referral.
With regard to medical benefits and maximum medical improvement, the Board rejected an employer’s argument that, because a treating physician ended “all active medical treatment,” the employee is conclusively presumed at maximum medical improvement because the employer didn’t authorize the treating physician’s referrals nor did it ask either treating physician whether all active medical treatment had ended. The case is Gautreaux v. Hermitage Hall.
The final topic is temporary disability benefits; the Board issued a pair of cases.
In Lowder v. XPO Logistics Freight, the Board held that section 50-6-205(b)(3) imposes a penalty of 25 percent on unpaid temporary total benefits only, not temporary partial disability benefits.
And, in Delaney v. TPI Corp., the Board held that, where the medical evidence substantiated an employee’s duration of disability for the time period beginning with the date of his surgery and ending on the date the physician released him to return to work, but the employee’s testimony gave the wrong year, the trial court’s award of disability benefits from the date of surgery until his release was proper considering the entire record.
Whew! That’s a lot for one sitting.
In the next post, I’ll touch on cases dealing with compensability, defenses, civil procedure, evidence, and fees.
Afterward, I’ll summarize the Supreme Court Panel cases.