By Traci Haynes, staff attorney, Gray

We use homonyms or multiple-meaning words every day. For example, left as in “Joe left the room,” or “hand me the book to the left.” We begin learning the distinctions at an early age. Spend a day with an inquisitive toddler, and you’ll quickly know what I mean.

Earlier this month, in oral arguments in Taylor v. Coca-Cola, the Appeals Board and the parties debated the meaning of the word “disclose.” In another recent case, Basham v. SPB Hospitality, the Appeals Board is faced with determining the meaning of the word “underlying” as that term is used in the statute.

In Basham, the injured worker was physically attacked, hit, and dragged by a car following a dispute with an angry customer. The employee claimed both physical and mental injuries. She was placed at maximum medical improvement for her physical injuries, but the authorized psychiatrist restricted her from working “until further notice due to her mental injury.”

At an expedited hearing, Basham successfully argued that her mental injury didn’t arise primarily out of the physical injury as that phrase is used in section 50-6-207(1)(E), so her entitlement to temporary benefits hadn’t ended. The trial court agreed and decided she was entitled to ongoing temporary total disability benefits despite being at maximum medical improvement for her physical injury.

At the hearing, the parties focused on the part of the statute that said the injured worker is “conclusively presumed to be at maximum medical improvement when the treating physician ends all active medical treatment and the only care provided is for the treatment of pain or for the mental injury that arose primarily out of the physical injury.”

The trial court reasoned that section 207(1)(E) didn’t apply in this situation at all. The judge stated that section 207(1)(E) wasn’t applicable when a mental injury occurs contemporaneously with the physical injury if the mental injury arises primarily out of the incident itself (sudden or unusual stimulus) and not the physical injury. By this, the court found Basham was entitled to ongoing temporary total disability benefits for her mental injuries despite having reached maximum medical improvement for her physical injury. That decision wasn’t appealed, and SPB restarted temporary disability benefits.

All was well until the employer stopped paying temporary disability benefits 104 weeks after the date of injury. Basham filed a motion to compel compliance with the earlier court order, seeking past and ongoing temporary disability benefits.

The trial court decided the issue without a hearing. SPB argued it was correct in suspending benefits because at the earlier expedited hearing, the court held that Basham’s mental injury arose primarily out of the incident itself and was therefore contemporaneous with and not arising out of the physical injury. Therefore, if section 207(1)(E) doesn’t apply, then subsection (D) must apply. Subsection (D) states that temporary total disability benefits shall end when the treating psychiatrist places the injured worker at maximum medical improvement or 104 weeks after the date of injury where there is no underlying physical injury.

SPB argued that the parties were 104 weeks past the injury date. And because the trial court ruled that the physical injury and mental injury were two separate injuries, Basham didn’t have an “underlying” physical injury and was conclusively presumed to be at maximum medical improvement for the mental injury under subsection 207(1)(D).

Employee argued, on the other hand, that even though her mental injury didn’t arise primarily out of the physical injuries, she still had multiple “underlying” physical injuries because of the incident, so subsection (D)(ii) didn’t apply.

The trial court held, “The natural and ordinary meaning of underlying is a cause or foundation of something else. In other words, the physical injury must be the primary cause of the mental injury to negate section 50-6-207(1)(D)(ii).” The judge further commented, “Had the legislature wished to exclude mental injuries occurring concurrently or incidentally with the physical injury it could have said so.” Because Basham convinced the court she was likely to succeed in proving the physical and mental injuries were separate, the court held she couldn’t receive benefits beyond 104 weeks from the date of injury.

On appeal, Basham argued that although her mental injury didn’t arise out of her physical injuries, that didn’t mean she didn’t incur “underlying” physical injuries during the attack. “If Ms. Basham wasn’t beaten and run over, the actions which caused her physical injuries, then she likely wouldn’t have ever had her mental injury. Thus, to say that there aren’t any underlying physical injuries to the mental injury is inaccurate and against the plain language of the statute,” her attorney, Michael Fisher, argued.

SPB contended that the 104-week limit applies unless a physical injury was the primary cause of the mental injury. Therefore, Basham was limited to 104 weeks of temporary benefits because she proved at the expedited hearing that her mental injury was separate from the physical injury. In other words, there was not an underlying physical injury.

During oral arguments, Presiding Judge Timothy Conner commented that the employee’s case fell in the category of injuries where “the event itself caused both physical injuries and mental injuries.”

Fisher responded that the trial court’s (expedited hearing) order stated that, “she was to receive benefits until she reached MMI.” “It didn’t say anything about the employer stopping at one hundred four weeks.” He said that the trial court “broadened” the statute by its decision on the motion to compel because it requires the mental injury to arise primarily out of the physical injury. He asserted, “The legislature specifically did not use the language ‘arise primarily out of’ as they did in Tennessee Code Annotated section 50-6-207(1)(E).”

Judge Conner asked if Fisher’s definition of “underlying” was “accompanying.” He responded that it wasn’t necessarily “accompanying,” but there was an “underlying” physical injury because the physical and mental injuries occurred at the same time.

SPB’s attorney, Taylor Pruitt, argued that Basham’s interpretation of the statute would be unjust for employees. He explained two hypotheticals that involved the same sudden and unusual stimulus. In the first hypothetical, the injured worker only had a mental injury and was not physically harmed. In the second, the injured worker sprained his ankle while fleeing the stimulus. Pruitt argued that this is unjust, because the second injured worker could receive more in temporary total disability benefits because he had an underlying injury.

Judge Conner asked Pruitt to provide a third hypothetical where section 50-6-207(1)(D)(ii) would apply. He responded that there must be some type of causal relationship between the physical and mental injuries. In other words, an employee injures his back (primary injury), and months later the employee lives with depression because he can no longer do the things he used to do (mental injury).

Pruitt argued that section 50-6-207(1)(D) requires the selection of either subsection (i) or (ii), because they are preceded by “upon the earliest occurrence of the following.” He argued that this indicates you are to select from more than one option. He said that the intent of the section was to create caps for temporary disability benefits in mental injuries, because mental injuries sometimes never resolve. Therefore, “the concept of MMI is not as applicable to mental injuries as it is to physical injuries.”

Regardless of the outcome, this case illustrates how easily the word “underlying,” a commonly used word, can be construed in multiple ways. Soon, the Board will tell us what they think it means.

Cades Cove, Gatlinburg, Tennessee–photo by the author.