Year in Review: Appeal Board, Part 2
Welcome to the latest in a three-part series on the 2021 appeal decisions. As the title suggests, this article covers the rest of the Board’s advice from the past year on many different issues.
You read the cases in their entirety, right? Thank you.
This is a good place to start, as the Commission has published several cases providing practical guidance on summary judgment. If you’re filing or responding, read these reviews!
First, the judges overturned the grant of summary judgment in Gibbs v. Express Services, where the licensed attending physician’s affidavit stated that the “complaints and symptoms[. . .]of an employee[areatleast50%relatedtohercomplaintsandpre-existingsymptoms”butthedoctordidnotspecifyifthesureinjurywasmainlyjob-relatedifthesureinjuryhadcausedadisabilityiftheemployeeneededadditionalmedicaltreatment[sontliésàaumoins50%àsesplaintesetsymptômespréexistants»maislemédecinn’apasprécisésilablessureétaitprincipalementliéeàl’emploisilablessureavaitentraînéuneinvaliditésil’employéeavaitbesoind’untraitementmédicalsupplémentaireousicebesoinaétécauséparlablessure
Similarly, the Commission reversed another summary judgment award and clarified what a trial court should consider when deciding a motion for summary judgment in Lemons v. Elwood Staffing Services. The judges found that where the record did not include expert medical depositions, answers to examinations or admissions to expert medical opinions, or affidavits expressing medical opinions, but the party applicant relied solely on medical documents to deny causation, summary judgment was inappropriate.
In this sense, in Sadeekah v. Abdelaziz, d/b/a Home Furniture and More, the Board has ruled that a party cannot support a motion for summary judgment or a response thereto with medical records. The Commission repeated this conclusion in Morgan v. Beall Manufacturing, Inc.
Medical benefits and panel requirement
In Hawes v. McLane Company, the Commission ruled that an employer may order an employee to consult with an “employer-sponsored medical provider” before offering a panel, but this examination does not replace a panel or relieve the employer from this duty. Further, the employer’s assertion that an employee has no medical evidence to support their claim does not, by itself, excuse the employer from offering a panel.
As to when to offer a sign, although it is not a clear rule, waiting 54 weeks to request one is too long, according to the Board in Morton v. Morsey Constructors, d/b/a Harper Industries. In this case, the employee was treating other parts of the body and did not seek treatment, despite having access to a licensed physician, nurse case manager and claims adjuster, and no medical evidence at record did not suggest that the additional treatment he requested was causal to the incident at work.
The Board quashed Hibbits v. Royal, d/b/s Royal Guttering, finding that the trial court should have ordered the employer to propose a panel. In the case, the employee testified that he fell fifteen feet from a roof and was taken to the emergency room by ambulance, but he did not present a medical record of his treatment.
Moreover, in Tate v. Doney, d/b/a Middle Tennessee Respiratory, the employer never offered a panel but referred the employee to a doctor, which the employee did not like. At trial, the only evidence that the employee asked for another doctor is her testimony; the records were silent on his displeasure. The failure to offer a panel was not essential, and the trial court erred in replacing the attending physician with a physician chosen by the employee.
Now here is a topic that is always near and dear to practitioners.
In Henderson v. Pee Dee Country Enterprises, the trial court approved a settlement in a death case, in which the employer agreed to pay a weekly payment to the surviving spouse. This constitutes an “attribution,” according to the Commission, even though some statutory provisions condition future payments to the surviving spouse on potential future events.
A few months later, the case returns. The Board found that the second sentence of section 226(a)(1), which requires “the Department” to consider the fees of attorneys representing employees to be reasonable where the fees do not exceed 20% of the award paid to the injured worker, applies to judges of the Workers’ Compensation Claims Tribunal. This means that the Court does not have the power to reduce the amount of the costs as being unreasonable. But a dissent cited “the century-old history of allowing the judge before whom a settlement is pending to review the reasonableness of attorneys’ fees in cases that do not proceed to trial.” This case is pending before a panel of the Supreme Court.
The Council later took on attorney fees on burial costs in Summers v. RTR Transportation Services. The judges acknowledged that no statutory provision expressly addresses attorneys’ fees to recover burial costs, but the issue is similar to the recovery of fees on disputed medical expenses. Thus, when the employer initially denied the claim but granted it three months after the date of death, the trial court did not abuse its discretion in denying attorneys’ fees on the costs of burial paid by the employer.
Limitations and Notices
In Day v. Great Salons of Knoxville, the Commission found that when an employee alleged two work-related injuries, the employer chose to treat the two injuries as one claim, and the trial court ultimately dismissed the employee’s motion. employee without prejudice, but the employer continued to voluntarily pay benefits for another three months, when the employee filed a second petition, this petition was filed on time.
In another case where the issue was the timeliness of the claim, the employer filed a “motion for approval of benefit determination settlement only,” but the judge refused to approve the settlement. More than a year later, the employee filed a “benefit determination petition.” The Board found that the employer’s filing satisfied the statute of limitations in Crawford v. Wal-Mart Associates.
Limitations and notice often go hand in hand, so here is the only notice case of 2021. In Ruggieri v. Amazon.com, the employee was injured and later, twice within the statutory 15-day notice period, verbally reported the injury to those designated as his supervisors for that shift, but who did not were not supervisors on the date of the accident. The Commission found that the trial court correctly found that the employee had a reasonable excuse for not providing timely written notice.
In Philalom v. State Farm Mutual Automobile Insurance Company, the trial judge granted a motion at the discovery stage of the case for the notes of a nurse case manager. The Board upheld, rejecting the employer’s arguments that the notes are protected by the common interest doctrine, solicitor-client privilege or the work product doctrine. A nurse case manager must remain neutral and provide rehabilitation services to injured workers, the judges wrote. In particular, the employer asked the Supreme Court to review this interlocutory opinion, but it was refused. It is therefore an established law.
Then, in an expedited hearing, a party challenges the admissibility of a C-32 due to the lack of an original signature and accompanying resume, as well as the fact that the doctor n have not completed certain parts of the form. The Commission held that a trial court can still treat the form as a signed medical record, and 50-6-235(c) does not require the doctor to answer every question on the C-32. . The case is Mosley v. HG Staffing.
The Board had two opportunities to review the expedited hearing orders in McGauvran v. ATOS Syntel. The first time, the Board reiterated that the standard at an expedited hearing is whether the employee has provided enough evidence to show that they are likely to succeed at a hearing on the merits. This decision should be made in the context of a claim for temporary disability and/or medical benefits, not in claims where compensation is the only issue. (Don’t ask for a fork!)
The Commission reconsidered the case after the court awarded benefits and upheld. But a dissenting opinion (in part) questioned whether an injury caused by using a vaping device while on a break at work meets the legal definition of “injury.”
Temporary disability benefits
The Board has ruled that an employee who can perform modified duties but who has been terminated for cause is not entitled to temporary partial disability benefits. In Woodard v. Freeman Exhibits, the employee gave a positive drug test and did not participate in a drug rehabilitation program as required by a collective agreement, so the trial court did not err in refusing benefits.
Later, in Knott v. Great Lakes Cheese of TN, the employee admitted that she did not contact the employer or adjuster before seeing an unlicensed doctor. During this time, a referring doctor refused to see her, so the employer provided a panel of specialists, but the employee refused to choose a doctor and asked to continue dealing with her doctor. The Board ruled that the trial court correctly concluded that the employee was not entitled to temporary disability benefits during the period she refused to choose a doctor from the panel.
And finally, occupational diseases
Finally, the Commission considered the merits of a claim where the employee had filed a claim for medical benefits for an alleged occupational disease, even though he had remained at work full-time since the alleged date of the accident. The Board held that Section 50-6-303(a)(2) of the Annotated Tennessee Code does not “impose the requirement that the employee be disabled in order to be entitled to medical treatment or benefits” in Cody v. G.UB.MK Manufacturers.
So here it is: 2021, it’s done! May the coming year bring joy, good health and prosperity.
By Jane Salem
Courtesy of Tennessee Workers Compensation Court of Claims
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