Board Finds Appeal Frivolous, Awards Fees

By Jane Salem, staff attorney, Nashville

Decades ago, President Ronald Reagan famously said, “trust but verify.”

That saying embodies the employee’s position in Martin v. Kirby Building Systems, LLC. Martin suffered no permanent impairment after a work injury but wanted an order to “verify” his right to lifetime medical treatment. Kirby Building Systems essentially said “trust” us—an order is unnecessary because section 50-6-204 already guarantees that right.

The trial court sided with Martin, and last week, the Workers’ Compensation Appeals Board affirmed, deemed Kirby’s appeal frivolous, and awarded fees.

Facts

Martin injured his thumb at work, and Kirby accepted the claim. He reached maximum medical improvement with no permanent impairment, and later filed a petition requesting a final medical report to help resolve the “permanency-related issues.”

A mediator issued a dispute certification notice listing medical benefits as an issue, although Martin was receiving authorized treatment. The mediator noted “[n]o denied medical treatment.” Kirby emailed the mediator asking that the document be supplemented to reflect no current disputes regarding medical benefits and that Martin was apparently seeking an order to ensure his “statutory right” to lifetime medical benefits.

At a status hearing, Martin said his goal was a court order reflecting that, although he wasn’t entitled to any disability benefits, he remained entitled to reasonable and necessary future medical treatment causally related to the work injury. (“Open meds” in the vernacular.)

Kirby responded that his petition was improperly filed because no current dispute existed for adjudication.

Martin replied that an order was necessary to ensure his right to future medical treatment wasn’t lost due to the expiration of the statute of limitations.

After a compensation hearing, the trial court ordered future medical benefits. Kirby appealed on several grounds.

The opinion

First, Kirby contended that Martin’s petition was “statutorily improper and jurisdictionally defective,” because a “dispute” is an absolute prerequisite to filing a petition. It also asserted that the dispute certification notice was improper, because the “statutory condition precedent to judicial involvement was not satisfied.” Jurisdiction can’t be created by filing a petition without a controversy, Kirby asserted.

In response, Martin cited subsection 50-6-203(b)(2), which states that when an employer has voluntarily paid benefits, within one year after the accident resulting in injury, “the right to compensation is forever barred, unless a petition for benefit determination is filed with the bureau … within one (1) year from the latter of the date of the last authorized treatment or the time the employer ceased to make payments of compensation to or on behalf of the employee.”

In this case, Martin filed his petition almost a year after the treating physician assigned maximum medical improvement with no impairment, “as mandated by subsection 203(b)(2),” the Board wrote.

The appellate judges called Kirby’s argument “untenable.” They wrote that a “petition,” by the definition in court rules, “is the document that initiates the litigation process as described in Tennessee Code Annotated section 50-6-203.”

“Thus, by the express terms of this definition, the filing of a [petition] accomplishes two related but distinct functions: (1) it brings to the Bureau’s attention the existence of a dispute; and (2) it initiates the litigation process within the time limits described in subsection 203(b).” In addition, a “dispute” may be factual or legal in nature, or both.

“Clearly, a legal dispute has arisen in this case given that Employee believes his statutory right to future medical benefits is dependent on his timely filing of a [petition] required by subsection 203(b), whereas Employer apparently takes the position that Employee is statutorily entitled to future medical benefits regardless of the provisions of section 203.”

The Board reasoned that Kirby’s position, if accepted, would “create an absurdity” in workers’ compensation. Kirby was asking the Board to validate a strategy of denying the existence of a “dispute” in a compensable claim up to the date the statute of limitations expires due to the lack of any authorized medical treatment during the relevant one-year period then, presumably, agree that an employer has the right to deny any further medical benefits due to the expiration of the statute of limitations.

They continued:

“[W]ere we to accept Employer’s position that no dispute exists in a compensable claim where medical benefits are being provided and take that argument to its logical conclusion, an employee in an accepted claim would be required to seek medical care within one year of every authorized medical appointment or the issuance of a medical payment made by the employer, or risk losing entitlement to all future medical benefits. That could, of course, result in an employee seeking potentially unwarranted medical care and the employer or its insurer incurring medical bills for wholly avoidable visits. Such a result is absurd on its face.”

On this point, the Board concluded that the trial court’s “necessary function” is “to address issues regarding an injured worker’s entitlement to medical benefits, including future medical benefits.” So Martin’s petition was neither “statutorily” nor “jurisdictionally” defective.

Second, Kirby argued the case wasn’t ripe for adjudication because no dispute currently existed.

The Board rejected this contention as well. The case became ripe for adjudication when Martin reached maximum medical improvement, his last medical bill was paid, and he sought to secure his right to future medical benefits.

The Board agreed with the trial judge that the court’s refusal to act would result in hardship to Martin, now and later, since his right to future medical benefits “may be forefeited without a court judgment securing that right.”

Third, the Board nixed the argument that the trial court erred in issuing an order requiring Kirby to furnish reasonable, necessary, and causally related future medical benefits. Martin was merely “attempting to secure certain benefits to which he is entitled by statute after sustaining a compensable work-related injury, which Employer asserts he does not have the right to do.”

Finally, Kirby argued that allowing the order to stand “would undermine the workers’ compensation system and invite abuse.”

Calling this argument “similarly specious,” the Board wrote that Martin wasn’t asking the court to resolve “abstract questions” or “hypothetical disputes.” Rather, to ensure he didn’t lose his right to future medical treatment, Martin asked for an order memorializing that right.

“Similar cases are routinely resolved through the exact process described by Employee. Employer’s refusal to voluntarily agree to such an order in the present case is, frankly, difficult to comprehend,” the Board commented.

The Board concluded by deeming the appeal frivolous.

“Employer is appealing an order memorializing a benefit it concedes is owed to Employee for his compensable injury. It argues that the order is unnecessary because Employee is already entitled to these benefits, yet Employee has been forced to spend considerable time and resources litigating this case and obtaining a court order securing his entitlement to those same benefits. We conclude Employer had no reasonable chance of success on appeal, and that this appeal was brought solely for delay.”

The Board additionally awarded Martin attorney’s fees of $2,500.

A closing thought

Kirby has the right to seek review by a Supreme Court Panel. If that happens, we’ll follow up with the higher court’s opinion.

The opinion is significant because every year, the Court of Workers’ Compensation claims approves between 8,000 to 10,000 settlements. A sizeable portion involves no impairment and an employee seeking open medical benefits only. If a Panel were to reverse the Board, that type of approval would essentially become unnecessary.