By Jane Salem, staff attorney, Nashville
Welcome back to our final installment in the three-part series on last year’s workers’ compensation appellate opinions.
I noticed this was an issue in a handful of opinions (See what I did there? I know; my comic genius is being wasted as a staff attorney. But it’s hard to make a blog post about opinion after opinion interesting.)
In Scruggs v. Amazon.com, the employee conceded she didn’t notify the employer of her alleged injury until 21 days later, but she testified that she attributed her symptoms to everyday “aches and pains” until a second injury to the same body part a few weeks later left her with pain that was “different.” The Board agreed with the trial court that she had a reasonable excuse for her failure to give timely notice of the first accident.
In Hannah v. Senior Citizens Home Assistance Serv., the Board ruled that the trial court correctly held that an employer failed to show actual prejudice as required by section 50-6-201(a)(3), where it asserted it was unable to administer a drug screen immediately after the incident under its policy due to late notice, but no evidence suggested that the employee was intoxicated or under the influence of drugs or alcohol at any time during her employment.
Notice was an issue in a pair of hearing-loss cases involving a married couple whose employer gave annual hearing screenings.
In the husband’s case, James Ernstes v. Printpack, the Board held that the screenings were insufficient for him to reasonably suspect that work caused his hearing loss because the test results weren’t signed by the employee and contained a broadly-worded disclaimer regarding the many possible reasons for a change in hearing.
His wife fared differently. In Arlene Ernstes v. Printpack, the Board concluded the trial court erred in finding timely notice because the employee saw a physician in 2019, was told of her severe hearing loss, and she testified she knew it was from “all the loud noises,” but she didn’t give notice until 2020.
Civil Procedure, Etc.
Now we’ll turn to the civil procedure cases and everything else.
Reviews of summary judgment under Rule 56 were fairly common this past year. If you read nothing else, read these opinions! Summary judgment isn’t simple, and these cases are highly instructive, whether you’re moving for it or defending against it. Thanks for indulging my plea.
A summary judgment denial was proper in Brock v. Dollar General Corp., after the employer drafted statements of undisputed material facts that were prefaced with phrases like “employee is alleging,” “employee does not believe,” “employee is unsure,” and “employee contends.” Using this phrasing to describe alleged statements of undisputed fact, the employer didn’t meet its burden of production as required by Rule 56.03.
In Holt v. Quality Floor Coverings, the trial court correctly found that an employer likewise failed to meet its burden of production in an increased benefits case. It was undisputed that the employee was incarcerated at the time his initial benefit period expired, and no evidence was offered showing whether the employee was or wasn’t employed before his incarceration.
Another denial was affirmed in Watson v. Amazon.com, where the employer argued it negated an essential element by showing that the authorized doctor didn’t believe the injury arose from work based on a mechanism of injury indicating that the employee experienced a sudden cervical spine injury. The employee didn’t offer a contrary medical opinion but countered with his own affidavit describing the mechanism of injury in detail. The Board agreed that he created a genuine issue of material fact.
The employer fared better in Mitchell v. Waupaca Foundry. The Board affirmed a ruling that the employer satisfied its burden of production by submitting the admissible opinions of physicians on the employee’s permanent impairment and restrictions, as well as his compensation rate, its overpayment of temporary disability benefits, and that he had returned to work earning at least 100 percent of his pre-injury wages. In contrast, the employee raised multiple issues and made allegations questioning his medical treatment, but he presented no admissible evidence showing a genuine issue of material fact.
In Clark v. Hinton, the Board reminded that even when an employee doesn’t follow the rules for appeals, it still must make a “fresh determination” that summary judgment was appropriate. The employer showed that it negated an essential element of the claim and that the employee’s evidence was insufficient to establish his claim as a matter of law—namely, that he timely filed his petition before expiration of the statute of limitations.
The Board affirmed in another case with a limitations issue in McCarroll v. Amazon.com. The employer supported its motion with an affidavit from an adjuster stating that the injury occurred in August 2019; it last issued a payment for medical care in December 2019; and the petition was filed in January 2021. It was the employee’s second petition filed for that date of injury; the first one met a similar fate.
But the Board reversed a denial in another limitations case, Reed v. Express Employment Prof’ls. The employer showed through uncontradicted proof that the only petition stamped “filed” by the Bureau was dated more than one year after its last voluntary payment. The Board concluded the Court erred in finding a genuine issue of material fact when the employee contended that he gave a petition to a Bureau ombudsman several months earlier because there was no evidence that submission complied with the filing requirements to initiate a lawsuit for benefits.
As to when and how a summary judgment hearing should be continued, the Board reminded that motions under Rule 56.07 must be accompanied by an affidavit explaining why the nonmoving party hasn’t been able to oppose the motion, but it doesn’t need to give evidentiary facts going to the substantive merits of the case. This was in Love v. Love Management. (Lots of valuable information on summary judgment in this opinion.)
As for other civil procedure cases, the Board considered requests for admissions under Rule 36 in Holt v. Quality Floor Coverings. The judges concluded that the failure to respond to requests for admissions doesn’t give rise to a “dispute,” so that the party who served the requests must certify in a motion to deem matters admitted that the moving party made a good-faith effort to resolve the issues by agreement, as the Court rules require.
A court rule, and whether the administrator exceeded her authority in adopting it, was the focus in Scruggs v. Amazon.com. The short answer is, she didn’t. The Board held that two separate remedies exist for frivolous appeals. First, Rule 0800-02-22-.09(4) states that the Appeals Board may award reasonable attorney’s fees incurred by the appellee for the frivolous appeal. Second, section 50-6-225 allows a reviewing court, on determining that an appeal is frivolous, to assess a penalty without remand for a liquidated amount.
Another appeal about attorney’s fees is Cravens v. Cummins Filtration. The Board ruled that, where a global settlement includes the funding of a Medicare Set-Aside arrangement, and the employee agreed to pay 20 percent of the total recovery, the trial court erred in declining to approve the attorney’s fee from the MSA. The rationale is, the amount of the settlement used to fund the MSA inures to the employee’s benefit, as it relieves the employee of direct financial obligations attributable to certain future medical expenses.
We’ll end with an evidence opinion. In Merritt v. Flextronics, the trial court erred by admitting a physician’s causation opinion, when the doctor’s opinion was, to some extent, based on a misunderstanding of Tennessee law regarding the definition of “injury,” (a cumulative trauma injury), because Rule 703 of the Tennessee Rules of Evidence states that a court “shall disallow testimony in the form of an opinion or inference if the underlying facts or data indicate lack of trustworthiness.”
So… we made it! We slogged through 39 appellate opinions. Great job! Have a happy, healthy 2023.
How we’re feeling right now.