By Jane Salem, staff attorney, Nashville
As in previous years, I like to kick off January with a look back at last year’s appellate opinions. This post will summarize 2021 opinions from the Tennessee Supreme Court Special Workers’ Compensation Panel. In later posts, we’ll revisit the Appeals Board’s work from last year.
Don’t forget to read the opinions yourself! Because what I see in a case might not be your take on it. And remember that these are the musings of a staff attorney, not the judges of the Court of Workers’ Compensation Claims. The purpose of this article is just to whet your appetite to reread these opinions.
With that out of the way, let’s dive in. The Panel released 11 opinions, four of which originated in the Court of Workers’ Compensation Claims. We’ll start with those opinions.
In Shelton v. Hobbs Enterprises, the Panel affirmed somewhat curtly. The trial court had held the employee didn’t prove causation based on the treating physician’s opinion that it was “a bit difficult to say” whether the claimed work incident contributed to her condition, but that “[i]t’s certainly possible” the incident aggravated her existing shoulder condition. The Panel wrote that the employee asserted she tore her rotator cuff “no fewer than six times” in her brief, but the medical proof showed she hadn’t, and her counsel also incorrectly cited to pre-Reform Act case law.
Another case where the Panel was fairly blunt is Jumper v. Kellogg Company. The employee argued that the presumptions of correctness attached to a treating doctor’s causation opinion and impairment rating conflict with the statutory provision that the law must be construed fairly, impartially and favoring neither the employee nor the employer. The Panel found this argument “meritless” and that the statutory presumptions are facially neutral.
The Panel then affirmed the trial court ruling that the employee didn’t prove medical causation because her evidence in part relied on hypotheticals that weren’t supported by the evidence.
The Panel adopted the Appeals Board’s opinion in two cases.
First, in Nickerson v. Knox County, Tennessee, the issue was whether the Court of Workers’ Compensation Claims has subject matter jurisdiction for a mental injury allegedly stemming from the employee processing crime scenes, some involving children, from 2000 to 2011. Her PTSD wasn’t diagnosed until 2018. The Appeals Board examined in detail the definition of “date of injury,” cumulative trauma injuries, mental injuries and occupational disease claims, and ultimately concluded that the date of injury was 2011, pre-dating the Court’s creation, so it didn’t have jurisdiction.
Second, in Boutros v. Amazon.com DEDC, the Board affirmed a trial court finding of compensability and rejecting the employer’s contention that the Court could disregard part of the medical proof the Employer submitted and, at the same time, accept other parts of the medical proof from the same medical provider.
As for the cases originating in state trial courts, Garner v. Goodyear Tire & Rubber Company is an interesting read. The Panel upheld—somewhat skeptically—a trial court ruling that a hearing loss injury was compensable. The Panel observed that neither party’s physician supported their opinions with “particular medical evidence,” and that the employee’s testimony, although “not particularly persuasive,” “barely tipped the scales” in his favor.
The Panel then reversed the trial court ruling admitting into evidence an impairment rating for high-frequency hearing loss that was derived outside the AMA Guides. The doctor’s “flat-line method” wasn’t “used and accepted by the medical community,” the Panel held, because the physician supported his opinion with just one scholarly article, which hadn’t been commented on, expanded, or adopted by any other medical organization.
In another case where medical causation was disputed, the employee in Paris v. McKee Foods Corp. argued, and the Panel agreed, that the trial court erred in applying the independent intervening cause principle to relieve her former employer of liability for continued benefits under the settlement of a prior claim. The employee had been placed on lifting restrictions, which the lower court found she negligently exceeded. The Panel concluded that, since that conduct didn’t result in a “new injury or aggravation,” merely an increase in pain, the independent intervening cause principle doesn’t apply.
Reasonably necessary treatment and utilization review were discussed in Coblentz v. Stanley Black & Decker. The employee sought additional treatment—Botox to alleviate headaches—after settling his claim. The employer denied it, relying on a utilization review report concluding that the treatment wasn’t reasonable or necessary, which the medical director upheld. The trial court found that the employer rebutted the presumption of reasonable necessity. The Panel affirmed, reasoning that the employee reemphasized his need for the proposed treatment but the employee didn’t address the medical director’s rationale.
Two cases involved permanent total disability. In Hopper v. UGN, the employer contested the trial court finding that the employee was permanently and totally disabled, contending he only suffered two to three percent permanent impairment. The trial court credited the employee’s and his vocational expert’s testimony, which the employer didn’t refute, so the Panel had little difficulty affirming.
The Panel likewise affirmed the perm total ruling in Cummings v. Express Courier International, as well as the finding that the employer was entitled to a social security offset. As to the latter ruling, the Panel agreed that the offset doesn’t apply where the injury is to a scheduled member, but the trial court here found the injury was to the body. The Panel also rejected the employee’s argument that the employer didn’t prove the employee’s social security benefits were attributable to the employer’s contributions.
Finally, two opinions turned, to the employees’ detriment, on their inaction. Coincidentally, they involved the same employer.
In Memphis Gas Light & Water Division v. Nesbit, the Panel reversed a trial court finding that the employee gave timely notice of his injury. In April 2013, the employee reported an acute work injury to his knee. He was told the he needed a knee replacement, which wasn’t work related, so private insurance covered the procedure. The employee met with an attorney in summer 2014, who wrote a letter asking about the surgeon’s causation opinion. In December, the surgeon gave the opinion that the need for the procedure was caused by repetitive work.
The Panel found that the employee was “on notice, at the latest, he may have a compensable injury when he met with his attorney in the summer of 2014,” and he didn’t have to wait for the doctor’s response, so his December notice to the employer was untimely.
In Pearson v. Memphis Gas Light & Water Division, the Panel concluded that the employee filed his complaint more than one year after he discovered his injury, so it was barred by the statute of limitations.
The employee first underwent surgery for a spinal cord condition in 2014 and had a second surgery in 2016. Afterward, in September 2016, his attorney received a letter from the surgeon relating the surgeries to work, but he didn’t file the claim until October 2017. The Panel rejected the contention that the day the employee’s attorney told him about the letter was when he discovered the work injury, rather than the day the attorney received the information.
In the next post: The Appeals Board’s most recent opinions on medical causation, and more.