Salem: Top Appellate Decisions of 2023, Part 1
Thursday, February 1, 2024 | 0
Usually, I begin a new year with a recap of every workers’ compensation appellate opinion (except the memoranda) of the past year from the Tennessee Supreme Court’s Special Workers’ Compensation Appeals Panel and the Appeals Board.
Jane Salem
This year, I’m shaking it up.
Instead, I’ll recap 10 key opinions from the previous year — cases typically with more than one noteworthy ruling. I’ll do it in two parts because as usual, the appellate courts were productive and released many weighty opinions.
Who decided which opinions are “important”? Me, myself and I.
Here’s the standard disclaimer: This is just my take on what the opinions mean; you can’t cite to this blog; and please read the opinions.
I wrote in a previous post that trial court subject matter jurisdiction was a huge consideration for the Appeals Board last year. The board released many opinions on the topic, but this was the central case. It involved several alleged respondents/statutory employers and was argued at the bureau’s educational conference last summer.
The board concluded that the Court of Workers’ Compensation Claims can’t hear and resolve coverage disputes between an employer and carrier because those are essentially contract disputes beyond the scope of the court’s authority in Section 238. However, the court may decide factual disputes that affect coverage, such as when the employee and employer assert two different dates of accident, one of which falls within the period during which the employer is covered by the insurance policy, and the other of which doesn’t.
Satterfield v. Smoky Mountain Home Health and Hospice Inc.
This opinion yielded many important rulings on a variety of topics.
It clarified the role of the dispute certification notice for starters, reiterating the importance of substance over form. The board held that where the initial dispute certification notice listed issues other than permanent disability benefits, but an earlier dispute certification notice listed permanent disability benefits as an issue, the employee didn’t waive a claim for increased benefits because the statute requires that an issue be certified on “a” dispute certification notice, not necessarily “the initial” dispute certification notice. The dispute certification notices should be considered as a whole and in the context of the entire record.
The board then turned to the crux of the case — the employee’s entitlement to extraordinary relief — reminding that these determinations are highly fact-intensive. The board concluded that where the employee had some teaching experience but had worked primarily as a registered nurse treating patients — positions to which the experts agreed she couldn’t return — the trial court correctly found it would be inequitable to limit the employee to increased benefits. Although the employer presented evidence of “possible positions” she could perform within her restrictions, this was insufficient proof that she could perform her preinjury occupation.
The opinion also contains a notable evidentiary ruling on the admissibility of expert testimony. The board affirmed the denial of a motion to exclude expert testimony where the expert and/or her staff contacted various employers with open, advertised positions she believed the employee might be qualified to perform. The board noted that, under Rule 703, experts are allowed to consider inadmissible information in forming their opinions. The objection goes to weight, not admissibility.
Matthews v. Family Dollar Stores of Tennessee LLC
This opinion shows that sometimes, a fine line separates medical causation and the extent of impairment in mental injury cases. Incidentally, this was the first time that an appellate court reviewed a trial court’s decision in a mental injury case to accept an impairment rating assigned by the Medical Impairment Rating Registry.
In affirming the judge’s acceptance of the MIRR physician’s rating, the board held that later traumatic events experienced by an injured worker may constitute one or more independent, intervening causes of psychiatric impairment. Moreover, preexisting impairments can be considered by an evaluating physician when apportioning impairment ratings under the guides, and later impairing events can be considered by the court in the causation analysis.
The board also reviewed an award of increased benefits, holding that when comparing an employee’s preinjury wages with her wages at the end of the initial compensation period, the critical question is whether the base rate of compensation is higher or lower — an “apples to apples” approach.
This case offered some valuable guidance on attorneys’ fees and the applicability of the fee schedule.
As to the former, the board held that, while contested medical expenses are part of the “recovery or award” upon which attorneys’ fees may be based, under Section 226(a)(1) this fee is to be paid by the party employing the attorney, not the employer.
Now the latter: Where the employee’s personal insurance covered past medical expenses, an employer that is later ordered to reimburse the insurer doesn’t need to pay the full amount of medical expenses but must pay the medical benefits owed under the fee schedule.
The board considered the payment of medical bills in this case, too. It determined that although the bureau’s rules require medical providers to use standard billing forms, where a provider hasn’t used the forms and the bills remain unpaid, the trial court correctly found that the employer didn’t comply with an order to pay for past treatment. The rule places an obligation on medical providers to submit bills on “industry standard billing forms,” but that doesn’t shield the employer from not paying the bills under a court order.
The board also defined the word “furnish” as used in Sections 204(a)(1)(A) and 226(d)(1)(A) to include both the authorization and payment of reasonable and necessary medical care causally related to a work injury.
In Part 2, I’ll highlight cases about aggravations of preexisting conditions, notice, panels and much more.
Jane Salem is a staff attorney in the Tennessee Court of Workers' Compensation Claims, Nashville. This entry is republished with permission from the court's blog.
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