By Jane Salem, staff attorney, Nashville
What a year! The memes abound about 2020, most of which contain language or images unsuitable for this forum. (Here are a few from Reader’s Digest that are less likely to offend.)
But regardless of last year’s tragedies, disruptions of our work and personal activities, and social and political unrest … we rather quietly and doggedly continued doing what we do here in the Court of Workers’ Compensation Claims and the Appeals Board. We heard or reviewed cases, and we wrote opinions.
So, what follows is my annual January recap of the past year’s Appeals Board opinions, broken into two parts. In this post, we’ll review the opinions about jurisdiction, medical causation, referrals, mechanism of injury, and witness credibility. In the next article, we’ll revisit cases on, well, everything else. We’ll finish up the month with a look back at Supreme Court Panel cases.
As always, I urge you to please read the cases, because what I might see as the central holding might differ from your opinion about what’s important in a case. Also, in a few select cases, I found more than one significant ruling. You might think one or both aren’t particularly special.
Remember that this is just my take on the cases, not the “official,” Court-approved interpretations. (Those don’t exist, by the way.) I’m writing this solely to jog your memory and mine about case law that might affect your cases in 2021 and beyond.
Now that that’s out of the way, let’s begin.
The pandemic didn’t stop the Board from having another productive year, as it develops an ever-growing stock of case law interpreting the Reform Act. In fact, the term “new law” is almost obsolete.
But that distinction ̶ jurisdiction ̶ was the central focus of one of the year’s most complicated cases, Nickerson v. Knox Cnty. Gov’t. The worker, a forensic investigator, alleged a mental injury after viewing crime scenes and, in particular, two crimes involving child victims that occurred in or before 2011. The employee alleged that her date of injury didn’t occur until she knew or had reason to know she had suffered a mental injury. The Board dismissed her claim, concluding that the date that an employee subjectively believed she suffered from a work-related mental disorder, or the date she was diagnosed with a mental disorder, may be relevant for purposes of applying the discovery rule in addressing the statute of limitations, but it doesn’t control the determination of the date of injury for purposes of determining whether the trial court has subject matter jurisdiction.
The case yielded another significant ruling, with the Board holding that the plain language of the statute and the case law discussing mental injuries suggest that a mental-injury claim can’t be treated as a gradual or cumulative injury. Therefore, the “last day worked rule” isn’t applicable to identify the date of injury in a mental-injury claim.
This case is pending before the Supreme Court. This was the second time the Board reviewed this case. See also this opinion.
Another complicated case from 2020, also on review before the Supreme Court, was Johnston v. Siskin Steel & Supply Co. The opinion offered important rulings about the medical causation of an alleged occupational disease, where the experts conflicted.
First, the Board held that the trial court erred when it placed greater weight on the causation opinions of physicians who relied in part on a medical screen that didn’t provide a “definitive assessment of the levels of heavy metals found in tissue.” Second, it was error to place equal weight among various experts, where one expert was a primary care physician with a master’s degree in pharmacology and toxicology but was not board-certified in toxicology and not licensed to practice medicine in Tennessee, and the other experts were all board-certified practitioners licensed to practice in Tennessee with many years of experience in their respective fields.
Moving on, in a perfect world, doctors would give causation opinions using the exact wording of the Workers’ Compensation Law. They often don’t in the real world, leaving the courts to interpret the legal impact of their causation statements.
For example, in Barnes v. Jack Cooper Transp., the Board held that the trial court erred at an expedited hearing when it accepted the opinion of a physician who wrote that the most recent work accident was “the cause” of the employee’s ongoing pain and exacerbated his pre-existing osteoarthritis.
Barnes also yielded an important ruling about when a panel is invalid and therefore the physician chosen from it isn’t entitled to a presumption of correctness regarding causation. Specifically, where a physician chosen from a panel declines to treat an injured worker, the employee asks for but the employer refuses to provide a third option, and the employee then selects a doctor from the remaining two on the panel, that physician wasn’t selected from a valid panel, and his causation opinion wasn’t entitled to the presumption.
A doctor’s choice of words was also critical in Armstrong v. Chattanooga Billiard Club, in which the Board reversed a denial of summary judgment. In the case, the employer submitted a C-32 stating that the worker’s dental injuries weren’t work-related, but the employee relied on a causation letter that stated that the recommended treatment “could very well be needed due to [an] electrical shock” at work. The trial court held that a genuine issue of material fact on causation existed. But the Board disagreed, pointing to case law holding that statements such as the “work activities . . . ‘could have’ contributed to the injury” are insufficient to prove causation.
Medical causation was the basis of attack in three cases involving referrals.
First, in Mollica v. EHHI Holdings, Inc., the Board held that an employer’s interpretation of the employee’s prior treatment records and its belief regarding the cause of her current mental complaints, without supporting expert medical proof, aren’t sufficient to overcome the trial court’s determination of the appropriateness of an authorized physician’s referral for psychiatric evaluation and treatment.
Likewise, in Beech v. G4S Secure Solutions (USA), Inc., an authorized physician made a psychiatric referral that the employer didn’t immediately honor. Approximately 10 months later, the employee requested a decision on the record. The employer requested time to depose the physician regarding the particulars of his causation opinion and medical necessity. The trial court denied the request and ordered it provide a panel of specialists, and the Board affirmed.
Then, in Ibarra v. Amazon Fulfillment Servs., Inc, the Board rejected the employer’s argument that, because the panel-selected physician didn’t give an opinion on the work-relatedness of the injury but instead referred the worker to an orthopedic specialist, it wasn’t obligated to honor that referral. The Board reminded that in these situations, the employer’s burden is prove that the referral isn’t medically necessary.
As to the propriety of a referral, in Gautreaux v. Hermitage Hall, the Board vacated a trial court opinion designating a particular physician to provide authorized psychiatric treatment, where the judge didn’t address the applicability or effect of a provision within the statute requiring that “[a]ll psychological or psychiatric services . . . shall be rendered only by psychologists or psychiatrists and shall be limited to those ordered upon the referral of [authorized] physicians[.]”
Next, in a case presenting rather unusual facts, an employee, after exiting a porta-potty, was injured by a dead tree that fell on him during a wind storm. The Board concluded that his injuries didn’t arise out of employment because his work activities didn’t present a risk greater than the risk common to the general public at the same time and place. The case is Rosasco v. W. Knoxville Painters, LLC. The Board reviewed an expedited hearing order; a later order granting summary judgment is now before the Supreme Court.
As to the provision of the statute requiring proof of a “specific incident,” the Board held in Friend v. Staples Contract and Comm., LLC, that an employee’s repetitive bending, squatting, stooping, and crawling over a two-day period that resulted in his injury satisfied this statutory requirement. The fact that the employee was unable to point to the specific moment in time that he tore his meniscus didn’t prevent his claim from being compensable.
Finally, mechanism of injury disputes often turn on witness credibility. Last year saw the release of two significant cases involving credibility, the first of which was Hodge v. Amazon.com.
There, the Board affirmed a trial court finding at the interlocutory stage that an employee proved a work-related injury, where the employee acknowledged she was injured at home days before she allegedly became injured moving a box at work. The authorized physician testified that he was aware of the fall at home but nonetheless found the injury work-related, and the Board deferred to the trial court’s credibility assessment. This was the lone case where the Board split in 2020; Judge David Hensley dissented.
However, the Board reversed in a case where credibility was determinative in Schubert v. CuraHealth Boston. A nurse alleged a work-related shoulder injury, which she didn’t immediately see as work-related because she said nurses experience “little aches and pains all the time.” After speaking with a physician two weeks after the work incident, she concluded the injury was due to that incident and reported it a work injury. The trial judge ruled that as a nurse with “substantial experience,” she wasn’t credible on that point, and the court also concluded this finding was buttressed by her in-court demeanor while testifying. But the Board noted that she didn’t testify as an expert, her testimony regarding the work incident and later symptoms was unrefuted, and there was enough evidence in the medical records to conclude she met her burden on causation.
Part two will be published later this week.