Board Offers Framework for Notice Cases

By Jane Salem, staff attorney, Nashville

Earlier this week, the Appeals Board issued an important opinion explaining how parties, practitioners and judges should approach the notice defense in the future. It is essential reading.

The 18-page opinion, Ernstes v. Printpack, also traced the history of the notice requirement in the workers’ compensation law, as well as a discussion of statutory interpretation and a little bit of legislative history. It was the second time the employer appealed on notice grounds.

(Because the opinion is lengthy, so is this article. Caffeine is recommended but not required.)

Facts

Arlene Ernstes asserted she suffered from noise-induced hearing loss caused by exposure to loud machinery over 33 years of employment at Printpack.

Printpack denied the claim. It asserted she knew or reasonably should’ve known she had a work-related hearing loss, at the latest, when she saw ear, nose, and throat specialist Dr. Karl Studtmann, who diagnosed it in 2019, and that she failed to give proper notice of her alleged injury. (Printpack raised other defenses, but this article is just about notice.)

The trial court found Ernstes’s notice was timely and awarded benefits. Printpack appealed. In December 2022, after oral argument, the Board concluded Ernstes didn’t give timely notice and remanded for additional findings on whether the employee gave a reasonable excuse for her failure to give proper notice and whether the employer had suffered any prejudice caused by the lack of notice.

On remand, the trial court held that Ernstes gave no reasonable excuse for her late notice but Printpack likewise offered no evidence that it was prejudiced by the lack of timely notice. So, the judge reiterated the original award, and Printpack appealed again.

The second time around, Printpack challenged the trial court’s finding regarding the “reasonable excuse” element.

History

The Board began its analysis by outlining the history of the notice requirement, pointing out that Tennessee’s first workers’ compensation law, passed in 1919, included a notice provision. It said an injured employee must “give or cause to be given to the employer written notice of the injury … unless it can be shown that the employer had actual knowledge of the accident.” Until just a few years ago, the timeframe for giving notice was 30 days. The 1919 law also said: “[n]o defect or inaccuracy in the notice shall be a bar to compensation unless the employer can show to the satisfaction of the tribunal … that [it] was prejudiced by the failure to give proper notice and then only to the extent of such prejudice.”

So, burden-shifting to an employer to some extent was envisioned from the law’s very beginning.

Fast-forward to the 21^st Century. Over the years, lawmakers had renumbered some of the notice provisions. In 2012, before the passage of the Reform Act, the basic notice requirement was in section 201(a). Section 201(b) addressed an employee’s notice obligation in gradual injury or cumulative trauma cases. Section 50-6-202(a)(1) outlined the necessary contents of the notice, and section 50-6-202(a)(2) contained the “defect and prejudice” language.

Then with the Reform Act in 2013, lawmakers changed the structure of the notice provisions, so they are now all contained in section 50-6-201.

Subsection 201(a) is now divided into three subparagraphs:

(a)(1) Every injured employee or the injured employee’s representative shall, immediately upon the occurrence of an injury, or as soon thereafter as is reasonable and practicable, give or cause to be given to the employer who has no actual notice, written notice of the injury, and the employee shall not be entitled to physician’s fees or to any compensation that may have accrued under this chapter, from the date of the accident to the giving of notice, unless it can be shown that the employer had actual knowledge of the accident. No compensation shall be payable under this chapter, unless the written notice is given to the employer within fifteen (15) days after the occurrence of the accident, unless reasonable excuse for failure to give the notice is made to the satisfaction of the tribunal to which the claim for compensation may be presented.

(2) The notice of the occurrence of an accident by the employee required to be given to the employer shall state in plain and simple language the name and address of the employee and the time, place, nature, and cause of the accident resulting in injury or death. The notice shall be signed by the claimant or by some person authorized to sign on the claimant’s behalf, or by any one (1) or more of the claimant’s dependents if the accident resulted in death to the employee.

(3) No defect or inaccuracy in the notice shall be a bar to compensation, unless the employer can show, to the satisfaction of the workers’ compensation judge before which the matter is pending, that the employer was prejudiced by the failure to give the proper notice, and then only to the extent of the prejudice.

In addition, subsection 201(b), applicable to gradual injury and cumulative trauma cases, requires the injured worker to provide notice 15 days after the employee:

(1) Knows or reasonably should know that the employee has suffered a work-related injury that has resulted in permanent physical impairment; or

(2) Is rendered unable to continue to perform the employee’s normal work activities as a result of the work-related injury and the employee knows or reasonably should know that the injury was caused by work-related activities.

The Issues and Outcome

According to the Board, the revisions created two issues. The first is whether lateness of notice is necessarily a “defect” as that term is used in section 201(a)(3) and, if so, whether the burden of proof shifts to the employer in every “late notice” case to show prejudice caused by the lateness of the employee’s notice. The second is, by moving the “defect and prejudice” language into subsection 201(a), and making it a subpart of the general notice provisions, does this language still apply in cases involving an alleged gradual injury or cumulative trauma, which is governed by section 201(b)?

After applying principles of statutory interpretation, the Board concluded that the structure and certain language of Tennessee Code Annotated section 50-6-201 are ambiguous.

“First, it is unclear whether the language now appearing in sections 201(a)(2) and 201(a)(3), which was applied to gradual injury claims prior to the effective date of the Reform Act, still applies to such claims given the changes made to the structure — but not to the language — of section 201,” they wrote.

“Second, it is unclear whether the term ‘defect’ as used in subparagraph 201(a)(3) applies only to the contents of an employee’s written notice, which is the interpretation supported by pre-reform cases from the Tennessee Supreme Court, or whether the lateness of that notice can constitute a ‘defect’ that shifts the burden of proof to the employer to show prejudice.”

The Board then turned to the legislative history to interpret the intent of the General Assembly.

The Board concluded: “[W]hen the legislature moved the provisions of Tennessee Code Annotated section 50-6-202 to section 50-6-201(a), without altering the language itself, it expressed no specific intent to restrict the application of that language to all cases other than gradually-occurring or cumulative trauma injuries.”

The judges continued, “Given that such language has been referenced and applied in gradual injury cases prior to the passage of the Reform Act, it would represent a significant change in the law to now conclude that such language no longer applies in gradual injury cases.”

The Bottom Line

The Board then gave step-by-step directions, verbatim, for future notice cases. Save this language! (I’ve put it in the boldface, but the Board didn’t.) The steps are:

Did the employee provide timely written notice of the alleged work-related injury? See Tenn. Code Ann. § 50-6-201(a)(1).
If no timely written notice was provided, did the employer have “actual knowledge” of the alleged work-related accident or injury? See Tenn. Code Ann. § 50-6-201(a)(1).
If no timely written notice was provided and no actual knowledge has been proven, did the employee show a “reasonable excuse” for the failure to give proper notice to the employer? See Tenn. Code Ann. § 50-6-201(a)(1). In considering whether the employee has shown by a preponderance of the evidence a reasonable excuse, a court can consider, among other things: (1) the employer’s actual knowledge of the employee’s injury, (2) lack of prejudice to the employer by an excusal of the notice requirement, and (3) the excuse or inability of the employee to timely notify the employer. See Dorris [v. Am. Limestone Co.], 2003 Tenn. LEXIS 321, at *4-5. However, as previously stated by the Tennessee Supreme Court, “[l]ack of prejudice alone would not be sufficient to excuse notice.” Aluminum Co. of Am. v. Rogers, 364 S.W.2d 358, 361 (Tenn. 1962).
If the court determines that: (1) no timely written notice was provided; (2) the employer did not have actual knowledge of the alleged accident or injury; and (3) the employee did not prove a reasonable excuse for the failure to give timely notice, the claim should be denied and dismissed.
If written notice was provided, but the employer affirmatively asserts there was a defect or inaccuracy in the notice, the burden of proof shifts to the employer to prove actual prejudice it suffered as a result of the defective or inaccurate notice and, if such prejudice is found, the trial court can fashion a remedy, if appropriate, “only to the extent of the prejudice.” See Tenn. Code Ann. §§ 50-6-201(a)(2), (3).

The Board added: “To the extent any of our prior opinions state or imply that the employer has the burden of proving prejudice in every case where lack of timely written notice is alleged, we clarify that the employee first has the burden of proving that: (1) timely written notice was provided; (2) the employer had actual knowledge of the accident or injury; or (3) the employee has a reasonable excuse for the failure to provide timely written notice.”

Returning to Ernstes’s facts, on remand, the trial court had concluded she didn’t show any reasonable excuse for her failure to give timely written notice of her alleged work-related hearing loss after a medical appointment with a hearing specialist in December 2019. Therefore, because no timely written notice was provided, no actual knowledge of the employer was shown, and no reasonable excuse was proven by a preponderance of the evidence, the Board reasoned that the claim should’ve been denied and dismissed. The Board reversed the trial court’s order and dismissed the petition.

This opinion might not be the final word. Ernstes may appeal the Board’s decision to the Tennessee Supreme Court under section 50-6-225.

I’ll close with a reminder to please read the case in its entirety. Thanks.