By Taylor Skees, staff attorney, Memphis

Bureau rules require the disclosure of evidence before trial except for “rebuttal” evidence. But what exactly is “rebuttal” evidence? And can an employee waive a panel? The Appeals Board answered these questions recently in Allen v. MJ Resurrection.

Facts

Allen fell at work. He then signed a waiver declining medical treatment from MJ Resurrection. This waiver included a statement that any future claim for his injury required an evaluation by MJ’s workers’ compensation carrier. The waiver also required Allen to notify his supervisor before treating his injury.

Allen inevitably requested medical treatment. He testified that he requested treatment many times before emailing his supervisor to request treatment. MJ didn’t refute this testimony.

MJ denied him a medical evaluation because it alleged that Allen only sought treatment when MJ denied his short-term disability benefits. It argued that he wasn’t entitled to benefits because he made prior worker’s compensation claims for the same injured body parts.

It also alleged that Allen suffered a fall at home, which actually caused his request for medical treatment. He refuted the claim that he fell at home, and he testified that none of his previous injuries was work related.

The trial court, after an expedited hearing, found that the waiver placed no time constraints on Allen seeking medical benefits and allowed him to pursue those medical benefits as long as he underwent the physician evaluation by MJ’s carrier.

MJ attempted to introduce the affidavit of its chief operating officer for impeachment purposes, but the trial court excluded the document because MJ didn’t produce it ten days before the hearing.

The trial court also ordered MJ to provide a panel of physicians. MJ appealed.

The Opinion

MJ appealed whether the trial court abused its discretion by excluding “evidence when it had significant and rebuttable purposes or by allowing evidence in notwithstanding [] Employer’s objections,” and whether Mr. Allen presented enough evidence to be entitled to a panel of physicians. The Appeals Board ultimately affirmed the trial court, though it disagreed with the trial court on the exclusion of the affidavit.

Evidentiary Exclusion

The Board reviews evidentiary rulings with an abuse-of-discretion standard.

Impeachment Evidence Rules

The Court’s rules require the party who filed the hearing request to file any documents it intends to use at the hearing 15 days before the hearing. The party opposing the hearing request must file any documents it intends to use ten days before the hearing. However, these rules don’t apply to “witnesses or evidence intended for impeachment or rebuttal purposes,” which may be introduced at the hearing without disclosing them beforehand.

MJ argued that the trial court improperly excluded the affidavit, because impeachment evidence doesn’t need to be disclosed before a hearing. The Appeals Board agreed, concluding that the trial court improperly excluded the affidavit from evidence.

They explained, “At the hearing, counsel for Employer asked Employee if he had fallen at home and if he had informed Mr. Lorenzo that he had fallen at home, and Employee denied that either had occurred.  This testimony was directly refuted by the testimony contained in Mr. Lorenzo’s affidavit.”

However, the Board also concluded that the trial court’s decision for MJ to provide a panel to Allen didn’t rely on the information included in the affidavit, so the error was harmless.

MJ also took issue with the trial court allowing Allen’s testimony that he requested medical treatment on multiple occasions, because he didn’t disclose this information in his discovery responses. The Appeals Board rejected this argument because MJ didn’t refute the testimony, so the preponderance of the evidence supported the determination that Allen requested medical treatment after signing the waiver.

Panel of Physicians

The Board reviews the trial court’s award of a panel of physicians by determining where the preponderance of the evidence lies and giving a presumption of correctness to the trial court’s factual findings.

While Mr. Allen signed a waiver, he later requested medical evaluations, and the waiver allowed him to seek medical benefits at a later date.

The Board revisited their decision in Thompson v. Weigel Stores, where it held that an employer’s obligation to provide a panel is triggered with a work-related accident, even if an injury hasn’t been identified. The only reason an employer wouldn’t provide a panel is if it asserts an affirmative defense that would disqualify the employee from receiving benefits.

The Board also distinguished this case from Berdnik v. Fairfield Glade Community Club, where the employer had an unrefuted medical opinion showing that the employee’s injury didn’t arise primarily out of the work-related incident. However, even in Berdnik, the Board warned that employers attempting to “skirt their obligations [to provide a panel]…exposes them to distinct, and significant risks.”

Here, even though Allen signed a waiver, that “cannot change the employer’s statutory obligation to provide a panel of physicians.” He later requested medical benefits, and MJ didn’t dispute that he had an accident at work that he claimed resulted in injuries. Further, “an employer cannot insulate itself from its statutory obligations with a waiver, contract, or any other written agreement” under section 50-6-114(a). So the Board held that the trial court properly awarded Allen a panel.

Takeaways

This case serves as a refresher on evidentiary filing deadlines and how they interact with impeachment evidence.

It also reminds that the Board only relieves employers of their duty to provide a panel in limited circumstances. Importantly, employers can’t contractually alter their obligations under the Workers’ Compensation Law.