By Traci Haynes, staff attorney, Gray

Last month, the Appeals Board heard oral arguments in Basham v. SPB Hospitality. The Board has now issued its opinion and explained the meaning of an “underlying physical injury” in the context of temporary total disability benefits.

In the case, Basham requested an expedited hearing to reinstate temporary total disability benefits, after she reached maximum medical improvement for her physical injuries but later revealed she also been living with a mental injury.

SPB argued benefits shouldn’t be reinstated because under section 50-6-207(1)(E), an employee is conclusively presumed at maximum medical improvement when the only care being provided is for a “mental injury that arose primarily out of a compensable physical injury.” The trial court determined that although Basham suffered physical injuries, her mental injury didn’t arise primarily from the physical injuries. Therefore, section 50-6-207(1)(E) didn’t apply. SPB was ordered to pay past and ongoing temporary total disability benefits.

A few weeks later, SPB stopped paying, citing section 50-6-207(1)(D)(ii). It insisted that because the case didn’t involve an underlying physical injury, subsection 207(1)(D)(ii) applied by default, and Basham was conclusively presumed at maximum medical improvement for the mental injury.

Basham moved the court to compel compliance with the previous expedited order and resume benefits. The trial court denied the motion, and she appealed.

It all came down to the meaning of “underlying.” Basham now argued that because she had an “underlying physical injury,” section 50-6-207(D)(ii) didn’t apply, either. SPB countered that she couldn’t have it both ways. She couldn’t argue that the mental injury wasn’t causally related to the physical injury, only to later argue that she did have an “underlying” physical injury and subsection 207(1)(D) wasn’t applicable.

The Board wrote that subsection 207(D)(1)(i) didn’t apply to this situation because Basham’s treating psychiatrist hadn’t determined she had reached maximum medical improvement.

But does subsection 207(D)(1)(ii) apply when the case doesn’t include an underlying physical injury?

Looking at the “natural and ordinary meaning” of “underlying” physical injury, the Board agreed with the trial court that it meant “a cause or foundation of something else.” The Board reasoned that to interpret it otherwise would require the courts to determine there is not a conclusive presumption of maximum medical improvement for this particular physical/mental injury scenario.

Therefore, if an employee suffers both mental and physical injuries from a single work-related incident, and the mental injury is independent of the physical injury, subsection 207(1)(D) determines maximum medical improvement at the earliest occurring event (maximum medical improvement by a psychiatrist or 104 weeks after the maximum medical improvement date for the physical injury). However, subsection 207(1)(E) defines maximum medical improvement when the mental injury arises primarily from the effects of the physical injury.

The opinion is interlocutory, so under the statue, Basham can’t appeal to the Supreme Court at this time.

Downtown Pigeon Forge–Photo by the author.