By Jane Salem, staff attorney, Nashville

Earlier this week, the Tennessee Workers’ Compensation Appeals Board affirmed a pair of trial court rulings about an employer’s right to a medical examination and the exclusion of expert testimony when an attorney didn’t comply with a scheduling deadline. The Board held oral argument in both cases last month.

In Bennett v. Suretech Construction, the employer challenged the trial court’s denial of its request for a medical evaluation to be performed by its doctor.

Preston Bennett fell from the roof of a house while working. He injured his thoracic spine, resulting in paralysis. Bennett received an impairment rating from a physician in Tennessee before moving to Maryland.

Afterward, Suretech asked him to undergo an evaluation in Lebanon, Tennessee with Dr. Jeffrey Hazlewood. Bennett refused, claiming the request was unreasonable due to his physical condition, traveling obstacles, and COVID-19 restrictions. Judge Brian Addington (Gray, Tenn.) denied Suretech’s motion to compel his attendance, concluding the request was unreasonable, and the Board affirmed.

The Workers’ Compensation Law provides that an injured employee “must submit to examination by the employer’s physician at all reasonable times if requested to do so by the employer.” Further, case law says the request must be “reasonable” when considered “in light of all the surrounding circumstances.”

Writing for the three-judge Board, Judge Pele I. Godkin observed that Bennett repeatedly expressed a willingness to submit to an evaluation but requested that the evaluation be scheduled closer to his home in Maryland.

His attorney, Michael Large of Bristol, argued that it wasn’t reasonable to require a complete paraplegic to be transported to middle Tennessee while continuing to suffer from decubitus ulcers and attached to a colostomy bag and catheter. Further, Bennett moved only to be closer to family, who could assist with his care and keep him out of a nursing home, and hadn’t returned to Tennessee since the move.

But attorneys Fred Baker and Courtney Hart, Cookeville, maintained that his physical condition should have no bearing on the reasonableness of travel, as he “is in essentially the same physical condition as when [he] voluntarily left the state.” They also argued that because Bennett filed his claim in Tennessee, he should’ve expected to return here for litigation.

The Board was unpersuaded. “Whether Employee may be required to return for a trial is not determinative of the issue presently before us,” Godkin wrote.

“[T]he trial court determined Employer’s request for Employee to travel to Tennessee for an examination from its doctor was not reasonable under the circumstances presented. We find no evidence to suggest the trial court’s findings were illogical or based on a clearly erroneous assessment of the evidence, and we conclude the result reached by the trial court was within the range of acceptable alternative dispositions.”

The Board additionally reasoned that Suretech’s right to an evaluation by its own physician wasn’t denied. Rather, the trial court concluded that the circumstances surrounding this specific request weren’t reasonable. This didn’t cause an injustice to Suretech.

In the other opinion released by the Board, Ricoh America Corporation asserted that Chief Judge Kenneth Switzer (Nashville), erred in granting a motion to exclude its vocational expert.

James Carter, represented by attorney Brian Dunigan of Goodlettsville, is seeking permanent total disability benefits in the pending case.

Ricoh’s attorney, Carolina Martin of Nashville, argued that restrictions caused by the pandemic and Gov. Lee’s executive orders left her unable to meet a deadline for expert disclosures.

On the date the disclosure was due, April 15, 2020, Ricoh filed a notice stating it would “continue to make efforts to secure a qualified expert.” Approximately eight weeks later, it filed a notice identifying its vocational expert.

Presiding Judge Tim Conner observed that the stakes were high because at trial, presumably Carter will offer vocational expert proof with no countervailing proof. Moreover, “this question is presented in the unique context of a nationwide pandemic that resulted in numerous restrictions placed on the activities of most Americans, resulting in delays, continuances, and schedule changes in courts across the state.”

Ricoh argued it would’ve been improper for it to identify a potential expert without knowing whether that expert could arrange for an in-person evaluation due to COVID-19 restrictions.

“Yet, equally compelling was the trial court’s finding that Employer offered no affidavit or other evidence supporting its statements regarding the difficulty in finding an expert,” Conner wrote. Moreover, “Employer could have filed a motion for an extension of time or a motion to alter the court’s scheduling order, but it failed to do so. … It is significant that Employer did not identify its expert until fifty-six days after the expiration of the court’s deadline.”

Finally, the Board rejected Ricoh’s argument that the trial court’s order resulted in an injustice to it, stating that, “A stern or harsh result does not necessarily equate to an injustice.”

The Board will issue an opinion from the remaining case argued in October later this month.