Board clarifies ‘incapacity for work’ in occupational disease cases

By Jane Salem, staff attorney, Nashville

Last week, the Appeals Board released an opinion clarifying that an employee may file a petition for workers’ compensation medical benefits for an alleged occupational disease even if that worker has remained on the job full-time since the alleged date of injury.

The opinion also reminds of key differences between a motion to dismiss versus one for summary judgment.

Procedural History           

In Dan Cody v. G.UB.MK Constructors, the employee alleged he suffered an occupational disease due to workplace exposure to coal fly ash. The employer, G.UB.MK, had filed a petition for benefit determination, which the Court later dismissed without prejudice.

Cody filed a second petition and later a motion to amend to allege he had “sustained a partial loss of the capacity to work.” The trial court granted the motion.

G.UB.MK then filed a motion to dismiss or, in the alternative, for summary judgment, alleging that Cody “cannot establish that he has an occupational illness or disease.” It argued, in part, that because Cody continued to work full time, he hadn’t sustained a compensable injury as defined in Tennessee Code Annotated section 50-6-303(a)(1).

The trial court asked the parties to brief the applicability of the Tennessee Supreme Court’s decision in Ingram v. Aetna Cas. & Sur. Co., 876 S.W.2d 91 (Tenn. 1994). Later, the trial court denied the motion for summary judgment, and G.UB.MK appealed.

The Appeals Board recently held oral arguments, and afterward affirmed the trial court’s decision.

The Opinion

G.UB.MK argued an employee can’t assert a claim for workers’ compensation benefits arising from an alleged occupational disease until there has been a “partial or total incapacity for work” under section 50-6-303(a)(1). Therefore, Cody’s petition was “prematurely filed.” The Board disagreed.

The section at issue provides that “the partial or total incapacity for work . . . of an employee resulting from an occupational disease as defined in § 50-6-301 shall be treated as the happening of an injury by accident,” entitling the injured worker to seek compensation. 

The Board differentiated a motion to dismiss under Rule 12 from summary judgment. Specifically, a dismissal for failure to state a claim upon which relief can be granted is used by defendants to test the sufficiency of the allegations in a petition, not the strength of a petitioner’s proof.

In contrast, per Rule 56, a motion for summary judgment should be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

The Board concluded that G.UB.MK was entitled to neither.

As to the motion to dismiss, G.UB.MK’s argument hinged on its interpretation of section 50-6-303(a)(1) and its assertion that an occupational disease claim doesn’t accrue until the employee experiences a partial or total incapacity for work. The Board reminded that Cody filed a motion to amend his petition to allege a partial loss of the capacity to work, which the trial court granted.

Therefore, “the allegations of Employee’s amended petition include a claim that there has been partial incapacity to work as contemplated in section 303(a)(1). Assuming that allegation to be true, as we are required to do in the context of Employer’s motion to dismiss, it is clear Employee has stated a cause of action[.]”

As to summary judgment, the Board held that G.UB.MK failed to either negate an essential element of the claim or establish as a matter of law that Cody’s proof is insufficient to support a claim.

But even if it had, Cody produced Rule 72 declarations, from a cardiologist and an occupational medicine physician, which created genuine issues of material fact regarding his work exposure to coal fly ash contributing to the aggravation of Cody’s coronary artery disease and hypertension.

The Board then considered whether the trial court erred in relying on the Tennessee Supreme Court’s opinion in Ingram.

In that case, the employee alleged an occupational disease due to workplace exposure to asbestos. A pulmonologist had diagnosed “benign asbestos pleural plaques.” The parties agreed that the employee wasn’t “presently disabled” due to his condition, and the medical experts couldn’t state with any degree of medical certainty if and when the employee would develop pulmonary dysfunction due to the occupational exposures. The employer denied any liability for medical benefits and asserted the claim was premature.

The Supreme Court rejected the employer’s argument, explaining “There is no statutory or procedural prohibition to prevent [the employee] from filing a claim for disability benefits if, and when, his condition advances to the point that some compensable degree of disability may be established. The one-year statute of limitation on an injury involving an occupational disease does not begin to run until ‘after the beginning of the incapacity for work.’ We find the plaintiff’s claim for disability benefits is not yet ripe for adjudication.”

The Board reminded that precedent from the Supreme Court remains good law unless the high court relied on: a remedial interpretation of pre-July 1, 2014 statutes; specific statutory language no longer contained in the Workers’ Compensation Law; and/or an analysis that has since been amended by the general assembly. The language in section 50-6-303(a)(1) is the same in all relevant respects as that which the Supreme Court relied on in Ingram.

G.UB.MK argued that Ingram didn’t apply, but the Board held it remains viable after the passage of the Reform Act.

“We conclude the Tennessee Supreme Court took a similar approach in Ingram that requires a trial court to consider the particular facts and circumstances of a case. If an employee alleges he or she suffers from an occupational disease, that employee may be entitled to medical benefits pursuant to Tennessee Code Annotated section 50-6-204(a)(1) if that employee comes forward with sufficient proof from which the trial court can conclude he or she is likely to prevail at a hearing on the merits in establishing the existence of an occupational disease in accordance with Tennessee Code Annotated section 50-6-102(14). However, as provided in Tennessee Code Annotated section 50-6-303(a)(1), the employee’s claim for disability benefits may not be ‘ripe for adjudication,’ Ingram, 876 S.W.2d at 94, but must be brought within the applicable limitation period after the ‘partial or total incapacity for work.’

“Moreover, the court in Ingram noted that the provisions of Tennessee Code Annotated section 50-6-303(a)(2) are also relevant. That section, unchanged since Ingram was decided, states that an employee with an occupational disease ‘shall be entitled to the same hospital, medical and miscellaneous benefits as an employee who has a compensable injury by accident.’”

The Board concluded that the high court in Ingram held this section doesn’t “impose a requirement that the employee be disabled in order to qualify for medical treatment or benefits.”

The Board affirmed and remanded. G.UB.MK can’t appeal the decision because it was interlocutory.

Kim Weaver, a legal assistant in Knoxville, captured some spectacular images from the Lakeside of the Smokies Balloonfest in Dandridge, Tennessee last weekend.

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