By Jane Salem, staff attorney, Nashville

The Reform Act of 2013 has survived another constitutional challenge, per opinions released earlier this month from the Tennessee Supreme Court.

In the Panel opinion, Brad Wigdor injured his knee when he slipped and fell on oil while working. Electric Research and Manufacturing Cooperative accepted the claim, and he underwent surgery. The authorized physician, Dr. Jason Hutchinson, later diagnosed complex regional pain syndrome. Dr. Hutchinson released him to full-duty work and assigned a 5% impairment.

Wigdor obtained an independent medical examination with Dr. Samuel Chung, who assigned a 9% impairment. The parties then sought and evaluation with the Medical Impairment Rating Registry. The MIRR physician, Dr. Michael Calfee, assigned a 5% rating.

After a compensation hearing, the trial court accepted Dr. Calfee’s rating and awarded benefits. At trial, Wigdor raised constitutional challenges to several aspects of the Reform Act, which the judge declined to rule on, asserting that the trial court lacked jurisdiction over his constitutional claims.

This is because in Richardson v. Board of Dentistry, the Tennessee Supreme Court held in 1995 that administrative tribunals may only decide challenges to the actions of an agency in applying a rule or statute or challenges to the constitutionality of the procedures employed by the agency. But they cannot decide challenges to the facial constitutionality of a statute authorizing the agency to act. Richardson was cited by a Panel in 2018, after the Reform Act took effect, in Pope v. Nebco of Cleveland, Inc.

Wigdor appealed. He didn’t dispute the impairment rating but instead reasserted his constitutional claims. The Appeals Board likewise declined to rule on them and affirmed, so Wigdor appealed to a Supreme Court Special Workers’ Compensation Panel.

He raised several challenges before the Panel. Wigdor argued that the Reform Act facially violates the Open Courts Clause of the Tennessee Constitution and the due process protections of the U.S. and Tennessee Constitutions. Specifically, he challenged: 1) the Act’s elimination of the requirement that courts give the law an equitable construction; 2) the removal of the multifactor vocational disability method for determining an employee’s period of compensation for specific injuries; and 3) the shortening of the time an injured worker can seek additional benefits.

The Decision

The Panel reminded that it recently considered (and rejected) a similar challenge in Worrell v Obion County School District. In Worrell, the Tennessee Supreme Court affirmed a Panel’s opinion and ordered the Panel opinion published, so that case controlled the outcome in Wigdor’s challenge.

Turning first to the Open Courts Clause, the Panel cited Worrell’s holding that it does not “operate  as a limit on legislative action.”

As for his substantive due process claims, the Panel applied “rational basis review”: to survive the challenge, the statute “need only bear a reasonable relation to a legitimate legislative purpose” and cannot be arbitrary or discriminatory. This was a “low bar,” the Panel wrote.

First, regarding elimination of the equitable construction, this was replaced with a directive to construe the law “fairly, impartially, and in accordance with the basic principles of statutory construction.” The Panel wrote that Worrell rejected a similar substantive due process challenge to the same provision, and that ruling applied here. Further, the neutral construction “bears a reasonable relation to a legitimate legislative interest in ensuring that employers and employees are similarly treated and that the statute is predictably interpreted.”

Second, as to the removal of the multi-factor vocational disability method for determining permanent partial disability, the Reform Act adopted a standardized formula for determining permanent partial disability. The formula multiplies 450 weeks by the employee’s impairment rating and compensation rate. The Panel wrote that this passes rational-basis review because it, too, “bears a reasonable relation to a legitimate legislative interest: predictability, administrative simplicity, and uniformity.” These were “largely lacking” under the previous law, the Panel noted.

Third, Wigdor challenged the Act’s shortening of the time an injured worker can seek additional benefits. An employee previously had 400 weeks from the date of injury to seek reconsideration in a case that involved injuries to the body as a whole. Now, the injured worker may seek increased benefits if they haven’t returned to work or are receiving a lesser salary at the end of the initial compensation period, or 180 days after they reach maximum medical improvement, whichever is later. An employee then has one year after the applicable times run to file a petition seeking increased benefits.

The Panel concluded that these revised timeframes also survived constitutional scrutiny because they “serve legitimate governmental interests in predictability and controlling workers’ compensation costs.”

The full Supreme Court released an order declining to hear the case, so Wigdor is final.

This was the second opinion to tackle substantive constitutional arguments, both of which have been unsuccessful.