By Jane Salem, staff attorney, Nashville
Thanks for reading this final installment of my three-part series on appellate opinions issued last year. As the title suggests, this article revisits decisions from Supreme Court Panels. Please read them; don’t rely just on my cursory analyses. Thanks.
I’ll begin with a case from the Claims Commission. In Pillow v. State of Tennessee, an employee was severely injured when, after leaving the bus that transported her to work, she was hit by the same bus and dragged. The bus transportation was free of charge as a perk of state employment. The Claims Commission said the coming-and-going rule made her claim noncompensable, and the Panel agreed. The “Swipe and Ride” program wasn’t a part of her compensation; traveling to and from her office wasn’t a “substantial part of the services for which [Employee] was employed;” and the employer didn’t create the necessity of her crossing the street from the bus stop to the office building. The Panel cited an Appeals Board case with approval that also involved employer-provided transportation.
Now for cases originating in the Court of Workers’ Compensation Claims.
In McCall v. Ferrell Paving, the Panel affirmed Judge Amber Luttrell’s conclusion that an employee didn’t rebut the presumption of correctness given to the authorized treating physician’s causation opinion. That physician “unequivocally testified” that the employee’s impingement resulted from a degenerative joint combined with normal wear and tear. In contrast, the employee’s physician testified that the fall at work “aggravated everything;” he asserted that the normal EMGs “don’t mean anything;” and his examination yielded several findings that were different from the authorized treating physician’s. These assertions simply aren’t enough to overcome the statutory presumption.
Next, a Panel affirmed Judge Dale Tipps’s rulings regarding alleged dependent minors in a death case and responsibility for guardian ad litem fees. In Estate of Turnage v. Dole Refrigerating Co., the employee surrendered his parental rights to his children, and his mother adopted them four months before his death. The trial court held they weren’t entitled to death benefits as either presumed wholly dependent children under Tennessee Code Annotated section 50-6-210(a)(2) or, alternatively, as partial dependents under Tennessee Code Annotated section 50-6-210(d).
On GAL fees, the Panel clarified that a GAL may request attorney’s fees in the Court of Workers’ Compensation Claims, but fees on appeal fall within the authority and discretion of the appellate court. The Panel then awarded fees for the appeal to the GAL representing a dependent child, but not to the GAL representing the others.
In the final CWCC case ̶ this one involving the election of remedies doctrine ̶ the Panel reversed a split Appeals Board and affirmed Judge Lisa Lowe in Goodwin v. Morristown Driver’s Servs. The Panel held that, where a resident of another state, employed by a Tennessee company, filed a claim in his state of residence for an injury he suffered in Tennessee, but that state later dismissed his claim for lack of subject matter jurisdiction, the claim isn’t barred in Tennessee because the other state’s claim was dismissed for lack of jurisdiction; thus the employee had no remedy to elect.
Pre-Reform Act cases
Goodwin segues nicely into the other election-of-remedies opinion from last year, Bilbrey v. Active USA, LLC. The Panel affirmed a trial court ruling that an employee elected another state’s remedy, observing that the employee took “intentional, affirmative steps on his own volition with the explicit intention of collecting workers’ compensation benefits” in another state. His actions included filing his claim and a request for a benefit review conference (even after retaining Tennessee counsel). The employee, with his wife’s assistance, acted on his own because the employer never sent him the documents he filed, or encouraged, prompted, or instructed him to file those documents.
Another opinion involving jurisdiction was Coates v. Tyson Foods, Inc. The trial court found the employee filed his claim within the statute of limitations. The employee began feeling pain in his elbows at work and saw his own doctor, who said it might go away on its own. It didn’t. He eventually saw an authorized specialist physician, who said he needed surgery. The employee filed his claim approximately two years after the pain first began but argued that the statute of limitations started running when he saw the specialist. The Panel affirmed, noting that the employee didn’t miss work until he underwent surgery.
Potter South East, LLC v. Bowling similarly involved the statute of limitations, although the opinion focused more on how to oppose a summary judgment motion. The case involved an alleged gradually-occurring injury and potentially the last-day-worked rule, which turns on an employee’s discovery that he has a work injury. The employer relied on a C-32 that created an “inference” that he knew he was injured as far back as 2010. The Panel held, “Unfortunately for Employee, there is no affidavit, interrogatory answer, or deposition in the record to support his contention that he was not aware until October 9, 2017, that his hearing loss was related to his employment.”
In Merriweather v. UGN, Inc., the trial court correctly accepted the opinion of the employer’s IME physician, where the other doctor based his opinion on a mistaken understanding that the employee had worked at her job many years. In addition, the trial court found that the employee’s IME doctor did “not show anatomical change has occurred, or that even if it had, that it was caused by a work related event.”
The employee fared better in Ivy v. Memphis Light Gas & Water Div. The Panel affirmed the trial court’s ruling that the worker overcame the presumption of correctness on causation afforded to a panel physician, where the judge accepted the causation opinion of the physician who is “‘the most qualified’ in terms of treating patients in this practice area.”
In a case with the same employer, the Panel affirmed a trial court’s acceptance of the causation opinions of the physicians who were “privy to all of the pertinent medical records and all of the history of [the employee’s ] shoulder condition prior to formulating their opinions.” The case, Memphis Light Gas & Water Div. v. Pearson, pitted panel-selected physicians on both sides of the issue.
In Perry v. Thyssenkrupp Elevator Corp., the Panel affirmed in part and reversed in part when a trial court rejected the ratings proposed by two opposing experts and assigned a different rating. The Panel reminded that a trial court may not apply the AMA Guides to the physical findings and diagnostic studies of the testifying physicians to independently arrive at an anatomical impairment rating. “A trial court, however, may properly adopt an anatomical impairment rating which is a modification of a rating assigned by a testifying physician, as long as the evidence in the record supports that modification.”
In Taylor v. G.UB.MK Constructors, when determining vocational disability, the trial court didn’t make specific findings of fact as to the extent that the employee’s injury impaired his earning capacity; therefore, the Panel made its own determination of where the preponderance of the evidence lies. The Panel then modified the trial court’s award to a lower amount, concluding that the employee’s vocational disability was more affected by problems with other body parts than his work-related hearing loss, and his hearing loss didn’t cause him to retire, miss work, or lose a job.
A pair of cases dealt with permanent total disability. In Hedrick v. Penske Truck Leasing Corp., the trial court found the employee permanently and totally disabled, where the treating physician placed him “off work,” and both vocational experts agreed that if the treating physician’s opinion were accepted, the worker is 100 percent disabled.
However, the employee’s PTD claim wasn’t successful in Vaughn v. City of Murfreesboro. There, the employee suffered physical and mental injuries but didn’t introduce an expert opinion on the extent of his vocational disability. Further, his own medical expert/psychiatrist reduced his impairment rating due to symptom magnification, and the employee had driven across the country on several trips against his doctors’ advice.
The lone case involving a physician from the Bureau’s Medical Impairment Rating Registry was Rodgers v. Rent-A-Ctr. East, Inc. The Panel held that the trial court erred when it found an employee offered clear and convincing evidence to rebut the presumption of correctness afforded to the MIR physician. The MIR doctor’s rating was based in part on the employee’s nonverifiable radiculopathy, and the MIR doctor offered a detailed explanation of how he used the Guides to arrive at his rating, while the several contrary opinions involved only one physician who found verifiable radiculopathy to justify a higher rating.
Costs; Record on Appeal
Rodgers also offered guidance on prevailing parties for discretionary costs. The Panel modified the judgment to decrease the employee’s impairment rating for purposes of calculating permanent partial disability benefits. But the Panel nonetheless concluded the employee remains the prevailing party because he was still entitled to an award and thus could collect discretionary costs.
The last case I’ll mention involved an attorney fee award, but the Panel spent more time on the appellate record. In Denson v. VIP Home Nursing & Rehab. Serv., LLC, the Panel observed, “This case is an example of how not to prepare a record on appeal.” It held that concerning a “statement of evidence,” the trial judge is in the best position to determine which matters are necessary to convey a fair, accurate and complete account of what transpired on those issues that are the bases of appeal. The Panel affirmed the fee award, by the way.