By Jane Salem, staff attorney, Nashville
The Tennessee Workers’ Compensation Appeals Board ruled earlier this week that the Reform Act of 2013 didn’t affect the longstanding “direct and natural consequences rule” for causation.
The Board additionally held that the trial court correctly admitted a vocational expert’s testimony into evidence, despite the fact that he destroyed his handwritten notes taken when he first evaluated the injured worker.
In the case, Tawan Braden, a truck driver, reported a right-ankle injury in 2016 when he tripped and fell while unloading a roll of carpet. An authorized doctor performed two surgeries to repair the fracture, and ultimately he returned to work. Braden reported another incident in 2017, after hearing a “pop” and feeling sudden pain while walking. The treating doctor performed two more surgeries.
After the compensation hearing, Judge Deana Seymour, Memphis, determined the second incident was a direct and natural consequence of the compensable work injury, and she found Braden permanently and totally disabled.
Mohawk Industries, Inc. appealed, arguing that the second incident was an independent, intervening event not causally related to Braden’s compensable work accident. The Board held oral argument in early February, and in a March 1 opinion, it affirmed.
In its opinion, the Board traced the history of the direct and natural consequences rule. For example, in Rogers v. Shaw, released in 1991, the Tennessee Supreme Court explained the general rule that “every natural consequence that flows from the work-related condition arises out of the employment, unless it is the result of an independent intervening cause attributable to the employee’s intentional conduct.”
In 2008, the Supreme Court revisited the rule in Anderson v. Westfield Group. The justices concluded that, “negligence is the appropriate standard for determining whether an independent intervening cause relieves an employer of liability for a subsequent injury purportedly flowing from a prior work-related injury.”
The Board noted that it had previously affirmed an interlocutory order involving the rule after passage of the 2013 Workers’ Compensation Reform Act in Hudgins v. Global Personnel Solutions, Inc. So this case was the first time the Board considered the rule in the context of a compensation hearing.
After closely examining the treating doctor’s testimony in Braden’s case, the judges observed that his testimony was “confusing and muddled at times.” But it was still sufficient to show that the tendon tear near the ankle flowed from and was a natural consequence of the original fracture and the surgery to repair that fracture. The Board also couldn’t find any evidence that Braden’s actions on the date of the second incident were negligent, reckless, or intentional.
The judges restated the rule:
“[A]n employee seeking to prove that a subsequent injury was a direct and natural consequence of the original compensable injury must come forward with evidence supporting a finding that the subsequent injury ‘flowed from’ or was a ‘natural consequence’ of the original injury. In such circumstances, one way an employer can respond is by showing that the actions of the employee leading to the subsequent injury constituted negligence, recklessness, or intentional conduct that broke the chain of causation.”
They then held that “nothing in the 2013 Workers’ Compensation Reform Act expressly abrogated or limited the scope of the direct and natural consequences rule. If this common law rule is to be re-interpreted in light of the Reform Act to require a higher degree of proof from the employee to show a causal link between the original injury and the subsequent injury, it is for our Supreme Court, not us, to address.”
As to the admissibility of the vocational expert’s testimony, the expert admitted to destroying his handwritten notes. But the Board said this impacted the weight the judge should give the opinion, not the admissibility of the expert’s testimony.
At trial, the expert explained that the relevant portions of the destroyed notes were included in his report and other documentation, and he said it’s “standard practice” to take notes during an interview but not retain them after writing a report.
The Board concluded that Mohawk hadn’t offered any evidence that the expert intentionally destroyed his notes contrary to standard practice for vocational experts or in an effort to hide evidence.
As to the finding of permanent total disability, the doctor testified that Braden was unable to stand for more than 15 minutes at a time or to walk for more than 50 yards without stopping, and he can’t lift 15 pounds or more repetitively. Braden testified he continues with pain management and regularly uses a cane. Further, the vocational expert testified that Braden had a “100% vocational loss.” Mohawk didn’t offer its own vocational expert opinion. So the Board had little trouble affirming on this issue.
Full-text of the opinion is available here.