By Jane Salem, staff attorney, Nashville
Welcome back to the last of a three-part series on 2021’s appellate decisions. As the title implies, this article covers the remainder of the Board opinions from last year on many different issues.
You are reading the cases in their entirety, right? Thanks.
This is a fine starting point, because the Board issued several cases yielding practical guidance on summary judgment. If you’re filing or responding, read these opinions!
First, the judges reversed a grant of summary judgment in Gibbs v. Express Services, where the authorized treating physician’s affidavit stated that an employee’s “complaints and symptoms . . . are at least 50% related to her pre-existing complaints and symptoms,” but the physician didn’t state whether the injury arose primarily out of employment, whether the injury resulted in any disablement, whether the employee needed additional medical treatment, or whether that need was caused by the injury.
The Board similarly reversed another grant of summary judgment and clarified what a trial court should consider when deciding a summary judgment motion in Lemons v. Elwood Staffing Services. The judges held that, where the record didn’t include depositions of any medical expert, interrogatory answers, or admissions addressing expert medical opinions, or affidavits expressing medical opinions, but the moving party relied merely on medical documents to negate causation, summary judgment was inappropriate.
Along these lines, in Sadeekah v. Abdelaziz, d/b/a Home Furniture and More, the Board held that a party can’t support a motion for summary judgment or a response to it with medical records. The Board repeated this conclusion in Morgan v. Beall Manufacturing, Inc.
Medical benefits and the panel requirement
In Hawes v. McLane Company, the Board held that an employer may direct an employee to see an “employer-sponsored medical provider” before offering a panel, but this examination doesn’t replace a panel or relieve an employer of that obligation. Moreover, the employer’s assertion that an employee has no medical evidence to support his claim doesn’t, standing alone, excuse the employer from offering a panel.
As to the timing of offering a panel, while it’s not a bright-line rule, waiting for 54 weeks to request one is too long, per the Board in Morton v. Morsey Constructors, d/b/a Harper Industries. In that case, the employee was treating other body parts and didn’t request treatment, despite having access to an authorized physician, a nurse case manager, and an adjuster, and no medical proof in the record suggested that the additional treatment he requested was causally related to the work incident.
The Board reversed in Hibbits v. Royal, d/b/a Royal Guttering, concluding that the trial court should’ve ordered the employer to offer a panel. In the case, the employee testified he fell fifteen feet from a roof and was transported to an emergency room by ambulance, but he didn’t introduce medical records of his treatment.
Further, in Tate v. Doney, d/b/a Middle Tennessee Respiratory, the employer never offered a panel but directed the employee to a physician, whom the employee didn’t like. At trial, the only proof that the employee asked for a different doctor was her testimony; the records were silent about her dissatisfaction. The failure to offer a panel wasn’t pivotal, and the trial court erred by replacing the treating physician with a doctor of the employee’s choosing.
Now here’s a topic that’s always near and dear to practitioners.
In Henderson v. Pee Dee Country Enterprises, the trial court approved a settlement in a death case, in which the employer agreed to pay a weekly payment to the surviving spouse. This constitutes an “award,” the Board held, even though certain statutory provisions make future payments to the surviving spouse contingent on potential future events.
A few months later, the case returned. The Board held that the second sentence of section 226(a)(1), which mandates “the department” to deem fees for attorneys representing employees to be reasonable when the fee doesn’t exceed 20 percent of the award to the injured worker, applies to judges of the Court of Workers’ Compensation Claims. This means that the Court has no authority to reduce the amount of fees as unreasonable. But a dissent cited the “one-hundred-year history of allowing the judge before whom a settlement is pending to review the reasonableness of the attorney’s fees in cases that do not proceed to trial.” This case is pending before a Supreme Court Panel.
Later, the Board tackled attorney’s fees on burial expenses in Summers v. RTR Transportation Services. The judges acknowledged that no statutory provision expressly addresses attorney’s fees for obtaining the burial expenses, but the issue is similar to the recovery of fees on contested medical expenses. So, where the employer initially denied the claim but accepted it three months after the date of death, the trial court didn’t abuse its discretion by denying attorney’s fees on the burial expenses the employer paid.
Limitations and notice
In Day v. Great Salons of Knoxville, the Board concluded that, where an employee alleged two work-related injuries, the employer chose to treat the two injuries as one claim, and the trial court ultimately dismissed the employee’s petition without prejudice, but the employer continued voluntarily paying benefits for another three months, when the employee filed a second petition, that petition was timely filed.
In another case where the issue was the timeliness of the claim, the employer filed a “Petition for Benefit Determination Settlement Approval Only,” but the judge declined to approve the settlement. Over a year later, the employee filed a “Petition for Benefit Determination.” The Board concluded that the employer’s filing satisfied the statute of limitations in Crawford v. Wal-Mart Associates.
Limitations and notice often go hand in hand, so here’s the lone notice case from 2021. In Ruggieri v. Amazon.com, the employee became injured and later, on two occasions within the 15-day statutory notice period, verbally reported the injury to individuals designated as her supervisors for that shift, but who weren’t acting as supervisors on the date of injury. The Board held that the trial court correctly found that the employee had a reasonable excuse for her failure to provide timely written notice.
In Philalom v. State Farm Mutual Automobile Insurance Company, the trial judge granted a motion in the discovery stage of the case to obtain a nurse case manager’s notes. The Board affirmed, rejecting the employer’s arguments that the notes are protected by the common-interest doctrine, attorney-client privilege, or the work-product doctrine. A nurse case manager must remain neutral and provide rehabilitative services to injured workers, the judges wrote. Notably, the employer asked the Supreme Court to review this interlocutory opinion, but it was denied. So it’s settled law.
Next, at an expedited hearing, a party objected to the admissibility of a C-32 due to the lack of an original signature and an accompanying CV, as well as the physician’s failure to complete certain parts of the form. The Board held that a trial court may still consider the form as a signed medical record, and section 50-6-235(c) doesn’t require the physician to respond to every question on the C-32. The case is Mosley v. HG Staffing.
The Board had two opportunities to review expedited hearing orders in McGauvran v. ATOS Syntel. The first time around, the Board reminded that the standard at an expedited hearing is whether the employee has provided sufficient evidence to show he would likely prevail at a hearing on the merits. This determination must be made in the context of a claim for temporary disability and/or medical benefits, and not in claims where compensability is the sole issue. (Don’t ask for bifurcation!)
The Board revisited the case after the court awarded benefits, and affirmed. But a dissenting opinion (in part) questioned whether an injury from using a vaping device on a break at work fits the statutory definition of “injury.”
Temporary disability benefits
The Board held that an employee who can perform modified duty but was terminated for cause isn’t entitled to temporary partial disability benefits. In Woodard v. Freeman Expositions, the employee gave a positive drug screen and didn’t attend a drug rehabilitation program as required by a collective bargaining agreement, so the trial court didn’t err in denying benefits.
Later, in Knott v. Great Lakes Cheese of TN, the employee admitted she didn’t contact the employer or adjuster before seeing an unauthorized physician. Meanwhile, a referral physician refused to see her, so the employer provided a panel of specialists, but the employee declined to select a physician and asked to continue treating with her physician. The Board ruled that the trial court correctly found the employee wasn’t entitled to temporary disability benefits during the time she declined to select a physician from the panel.
And lastly, occupational diseases
Finally, the Board considered the propriety of a claim where the employee filed a petition for medical benefits for an alleged occupational disease, even though the worker had remained on the job full-time since the alleged date of injury. The Board held that Tennessee Code Annotated section 50-6-303(a)(2) doesn’t “impose a requirement that the employee be disabled in order to qualify for medical treatment or benefits” in Cody v. G.UB.MK Constructors.
So there you have it: 2021, done! May the coming year bring joy, good health, and prosperity.
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