2020 Opinions, Revisited, Part two

By Jane Salem, staff attorney, Nashville

Welcome back to my annual review of last year’s Appeals Board opinions.

Of course, for years to come, mention of the word “2020” will spark memories of the pandemic. But do you know how many Board opinions actually involved COVID-19? Just a couple so far, and tangentially only.

But before we get into that case, remember, you must read these opinions yourself and decide what’s important in each. I’m just a staff attorney; what do I know? My sole purpose is to remind you of some of last year’s precedential cases from the Board, in hopes that it might help your practice. Thanks for doing your part.

Returning now to the coronavirus, the opinions that touched on it didn’t look at medical causation or the extent of a worker’s impairment. We suspect those are coming attractions. Rather, the cases involved ways the virus impacted discovery.

In Bennett v. Suretech Construction, the trial court denied a motion to compel an employee to return to Tennessee for an employer’s examination. The employee, made a paraplegic by his work injury, had moved to another state to be closer to family who could assist with his care and thus avoided the necessity of moving into a nursing home. In addition to the challenges associated with his medical condition, he said that travel restrictions during the early part of the pandemic made travel difficult. The Board affirmed, holding that the decision wasn’t “illogical” or “clearly erroneous,” nor did it cause the employer injustice.

In the other case, a trial court found no “excusable neglect” and granted a motion to exclude a vocational expert’s testimony because the party didn’t comply with a scheduling order deadline requiring disclosure of the expert. The party had argued that the Governor’s COVID restrictions last April made compliance impossible. The Board disagreed with the party and affirmed the trial court in Carter v. Ricoh America Corp., reasoning in part that the party offered no evidence of any difficulty encountered in seeking an expert during that time.

Moving on, the Board issued a few noteworthy opinions involving medical benefits.

First, in Washington v. UPS Ground Freight Inc., the Board held that an employee wasn’t entitled to medical transportation services, where he failed to show that a treating physician restricted him from driving or recommended specialized transportation.

As to an employee’s request for reimbursement for unauthorized treatment expenses, the Board clarified what the worker must offer beyond her own testimony to prove entitlement. Specifically, her testimony alone is an insufficient basis to award reimbursement of medical expenses, where no other evidence showed that the bills were incurred as a result of her compensable work injury or that the expenses were reasonable and necessary. The case is Mollica v. EHHI Holdings, Inc. (mentioned in my last post for an important causation ruling, too.)

The Board didn’t disturb a trial court’s decision to deny payment of past medicals in Smith v. Everidge, Inc. The Board wrote that the medical records included information suggesting how and why the employee came to treat with the providers whose records were admitted in evidence, and from which it could be inferred that the treatment was reasonable and necessary. Still, the Board left the trial court’s ruling in place, because on appeal, neither party, both of whom were represented by counsel, filed a brief. The Board reminded that it’s not their role to formulate arguments for parties.

In the sole case focusing mostly on temporary partial disability benefits, the Board held in Hopkins v. EmployBridge Holding Co. that environmental restrictions may serve as the basis for temporary disability benefits.

As to the calculation of average weekly wage for temporary disability, in Woodard v. Freeman Expositions, LLC, an employee worked for his employer for fewer than fifty-two weeks before the alleged injury, and he was a union member who worked when work became available and upon request. The Board agreed the employee wasn’t a regular employee with irregular hours, but rather he was an irregular employee, so the trial court properly excluded weeks from his average weekly wage calculation when he didn’t work.

Turning now to permanent partial disability, in Hart v. ThyssenKrupp Elevator Corp., the Board modified the trial court’s award of benefits based on a six-percent impairment rating because a portion of the rating was attributable to a non-work-related condition, the employee’s pre-existing AC arthrosis.

Three cases offered guidance on an employer’s defenses.

The employer argued willful misconduct in Hernandez v. Jones Fiber Prods. The trial court concluded that the employee lacked a valid excuse for ignoring a safety rule, after the employee’s hand became caught in machinery while attempting to remove fabric that clogged the machine. He argued that he violated the rule because his supervisors became angry when production was shut down to remove a clog. The Board was unpersuaded.

Likewise, the Board affirmed in Dennison v. Packaging Corp. of Am., agreeing that the employee engaged in willful misconduct and rejecting his contentions that he wasn’t trained on lockout procedures as a valid excuse for violating safety rules.

An employer unsuccessfully raised the intoxication defense in Woodard v. Freeman Expositions, LLC, (also helpful for its average weekly wage ruling above). The Board held that the trial court correctly concluded that the employer presented insufficient proof of intoxication, where the employer’s only evidence was a positive drug screen, but it offered no testimony from any witness that the employee appeared impaired on the date of the accident, nor did it offer an expert medical opinion that the levels of the intoxicants reflected on the drug screen would’ve caused impairment.

In a death case presenting somewhat unusual facts, the Board held that a non-party, the deceased worker’s niece who is not an attorney, may not represent the injured worker, a surviving spouse, or any other litigant in a workers’ compensation case. The case is Ayers, Deceased, v. Smith & Nephew, Inc.

And cases involving attorney’s fees seem to always capture our attention. In Bowlin v. Servall, LLC, the Board found no error, where the trial court declined to award attorney’s fees on medical expenses recovered to an employee from the employer because a plain reading of that section suggests that the attorney’s fees are to be “paid by the party employing the attorney.” This case is on review by the Supreme Court.

We’ll end with a couple of cases about proof generally.

First, the Board rejected an employer’s contention that, at an expedited hearing, the employee must prove she “can prevail at a full evidentiary hearing based upon the information that’s been presented to the Court today,” which is “a 50.1 percent standard.” Rather, previous opinions have explained how the “likely to prevail at trial” standard applicable at expedited hearings is different from the standard at the summary judgment stage and the ultimate burden of proof applicable at a trial on the merits. The case is Gillum v. Dollar General Corp.

Finally, almost every trial involves medical records. In Boutros v. Amazon, the Board held that it’s “incongruous” for a party to offer medical documentation into evidence and rely on certain portions of the documentation, then argue that the remainder of the documentation is not credible. This case is pending before the Supreme Court.

So there you have it; 2020! Use these Appeals Board opinions in good health going forward. The next post will take a look back at Supreme Court Workers’ Compensation Panel cases from last year.

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