By Jane Salem, staff attorney, Nashville
Welcome back to my two-part series on civil procedure in the Tennessee Court of Workers’ Compensation Claims. You did re-read the cases I mentioned in the last blog post in their entirety and you drew your own conclusions, right? Thanks.
I ended the last post with a recap of summary judgment opinions. But that’s not the only way a case might disappear from a docket.
In Lurz v. Int’l Paper Co., the Appeals Board rejected an employer’s argument that the trial court should’ve granted its motion for directed verdict after the employee presented her case. The employer cited Rule 50, but the Board explained that in non-jury cases, courts should instead consider these motions under Rule 41.02, involuntary dismissal.
The Appeals Board examined an involuntary dismissal at length in Lightfoot v. Xerox Bus. Servs., affirming the trial court’s sua sponte dismissal with prejudice. These dismissals are “drastic” and should occur “sparingly.”
The Board re-examined Rule 41 in Yeaman v. Kindred Health Care and affirmed a denial of a motion 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.
As an aside, the Board clarified in Taylor v. Am. Tire Distributors that there are four resolutions after a PBD is filed: 1) adjudication by a judge; 2) settlement of the claim approved by a judge; 3) a nonsuit or voluntary dismissal of the claim; or 4) involuntary dismissal of the claim. A “Notice of Withdrawal” of the PBD filed by a mediator is not on that list. The Bureau’s mediators no longer issue those; rather, in these circumstances, the court has a voluntary dismissal rule; see Tenn. Comp. R. & Regs. 0800-02-21-.24.
Turning now to a few cases regarding discovery, in Tennyson v. Saver’s Painting and Wallcovering, LLC, the Board rejected an employee’s contention that a deposition or any other form of discovery cannot take place before the parties participate in mediation. The Board also found that the trial court abused its discretion by limiting a deposition to one hour because the judge didn’t making findings of “good cause shown” to protect a party from “annoyance, embarrassment, oppression, or undue burden or expense” under Rule 26.03. (Reminder: a court rule limits depositions to no longer than four hours; see Tenn. Comp. R. & Regs. 0800-02-21-.17(3)(c).)
In King v. Big Binder Express, the Appeals Board remarked, “An employer’s right to have an employee examined by a physician of its choice has been a frequently disputed issue in workers’ compensation cases for decades.” The Board concluded that the only limitation on this right is that the employer’s request be made at a reasonable time and “be reasonable, as a whole, in light of the surrounding circumstances.” The Board reversed a trial court denial of this type of motion.
More recently, in McLaurin v. AT&T Servs., the Board held that, where the employer obtained an examination of the worker by a physician of its choice and then sought to obtain another opinion because the physician announced his impending retirement, the trial court correctly denied the request because the doctor didn’t state he would be unavailable but rather if he were going to see her, it would need to be before he retired, and the employer still had a reasonable opportunity to depose its physician or obtain his opinions in another admissible form. Clearly, these motions are fact-intensive.
In Caldwell v. Fed’l Mogul Motorsports, the Board considered the Workers’ Compensation Law’s provision that allows the employee to have his own physician present at an employer’s examination and Rule 35, concluding that “present” doesn’t mean the employee’s physician may attend electronically but must be physically present.
As for recovering an IME’s expense, in Garrasino v. W. Express, Inc., the Appeals Board held that an IME physician’s bill for reviewing medical records and performing a physical examination are not recoverable as discretionary costs under Rule 54.04. The employee appealed to the Supreme Court Panel, which affirmed the Board.
Johnson v. Pilgrim’s Pride came before the Appeals Board twice. The first time, the Board differentiated the rules on post-judgment motions, Rules 59 and 60. The former asks a court to alter or amend a judgment, while the latter gives specific reasons that a court may relieve a party from a final judgment, such as mistake, inadvertence, surprise, excusable neglect, fraud or “any other reason justifying relief.” In the case, the pro se employee sought to set aside a settlement agreement, arguing that she was under “stress” and “duress” at the time. The trial court declined her motion, and the Board affirmed.
The second time around, the Board issued a memorandum opinion outlining the principles of res judicata, a/k/a claim preclusion. The outcome was no different for the injured worker.
Back to Rule 59 motions to alter or amend. In Watson v. Labor Smart, Inc., the Appeals Board held that the trial court retains jurisdiction to resolve a timely-filed motion to alter or amend and that a notice of appeal filed before the filing of the motion, or before the trial court’s disposition of this type of motion, will be considered filed on the day the trial court files its order resolving the motion. The Board additionally reminded that it’s not bound by the Rules of Appellate Procedure, but they find them “instructive.”
Finally, a word about Rule 11 sanctions and frivolous appeals. In Thompson v. Comcast, the Board held that a frivolous appeal has “no realistic chance of success.” The Board may award attorneys’ fees and costs for frivolous appeals under its rules, but it has no authority to order sanctions under Rule 11 of the Tennessee Rules of Civil Procedure, which “does not apply to the appellate court[s].” But the rule does apply, and has been applied, at the trial court level.
In sum, these last two blog posts have discussed briefly just a smattering of the cases where the appellate courts interpreted the Rules of Civil Procedure in workers’ comp cases since the Reform Act took effect. It’s entirely possible that these articles didn’t touch on an opinion that might make the difference in your next case. So please, do your research, and stay current. Thanks in advance for your fine advocacy.