Salem: Your Honor, the Evidence Will Show ...
Thursday, September 5, 2019 | 235 | 0 | min read
As every trial attorney knows, getting evidence in front of the judge, or keeping it out, can make the difference between winning and losing.
With passage of the Reform Act came adherence to the Tennessee Rules of Evidence in the Court of Workers’ Compensation Claims. This was a significant development. The appellate courts have made some noteworthy rulings regarding admissible evidence in workers’ comp cases.
I’ve identified a few useful opinions, so you’ll be ready to make your next offer of proof or objection. I’ve provided links to the full text as well as pin cites in Lexis; copy and paste for your citation banks. But please read the entire cases, too. You might not agree with my interpretation, which (as always) is mine and not that of the Court of Workers’ Compensation Claims.
The physician certification form
In May, a Supreme Court Workers’ Compensation Panel held that these are admissible as self-authenticating official documents certified by the Department of Labor and Workforce Development, and shouldn’t be excluded as hearsay. These forms are necessary in extraordinary relief cases (275 weeks) under Tennessee Code Annotated section 50-6-242(a)(2)(B). Wright v. Nat’l Strategic Protective Servs., LLC, No. E2018-01019-SC-R3-WC, 2019 Tenn. LEXIS 220, at *26-27 (May 23, 2019).
A medical impairment rating report, aka MIR report
This case provides an example of another self-authenticating document. The court held that “the General Assembly’s purpose was to provide an efficient method for presenting neutral, objective opinions regarding an employee’s impairment to aid trial courts when the parties disagree regarding the extent of the impairment. ... Accordingly, properly prepared and certified MIR reports should not be excluded as hearsay.” Williams v. UPS, 328 S.W.3d 497, 502 (Tenn. Workers’ Comp. Panel Sept. 28, 2010).
If admitted, the report gives rise to a rebuttable presumption that the impairment rating in the document is the accurate impairment rating, which is likely the central reason parties turn to the medical impairment rating registry when they dispute impairment.
As in Wright, the panel emphasized that the party introducing the report must meet the statutory requirements for admissibility. This seems to be the case for all the statutory forms. Stated another way, follow the directions on the form and fully complete them.
An unsigned standard form medical report (C-32), which also lacks a statement of the physician’s qualifications or a supporting affidavit
The C-32 gives a physician’s opinion on medical causation. An employee argued she “substantially complied” with Tennessee Code Annotated section 50-6-235(c)(1). The Appeals Board disagreed, reasoning that she “cited no authority establishing that substantial compliance is sufficient to render the report admissible or even how she substantially complied.” Meier v. Lowe’s Home Centers, Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 68, at *9 (Nov. 2, 2017).
The board likewise rejected the employee’s contention that the trial court should’ve taken judicial notice of the doctor’s credentials.
A photocopy of a signed C-32 but no statement of qualifications
Nope. The Appeals Board held, “[T]he reports were not originals and were not accompanied by the required qualifications of the physicians as the statute requires. ... Employee offers no legal argument concerning how the trial court erred in excluding the documents based on the failure to comply with statutory requirements.” Watson v. Catlett Construction, 2018 TN Wrk. Comp. App. Bd. LEXIS 19, at *6-8 (May 18, 2018).
C-32s missing the fourth pages at trial, but the party submits the pages on appeal
The C-32s didn’t come in at trial, obviously. On receiving the notice of appeal, the Appeals Board remanded the case for the lower court to rule on the admissibility of the attached pages. The court excluded them. On appeal, the board affirmed, finding no abuse of discretion. Darraj v. McKee Foods Corp., 2017 TN Wrk. Comp. App. Bd. LEXIS 4, at *13 (Jan. 17, 2017).
A signed utilization review report
Utilization review reports address the medical necessity of a proposed treatment and are generally admissible. “Tenn. Comp. R. & Regs. 0800-02-21-.16(6)(b) ... provides that medical reports ‘signed by a physician’ are admissible.” Morgan v. Macy’s, 2016 TN Wrk. Comp. App. Bd. LEXIS 39, at *21 (Aug. 31, 2016).
This case yielded another useful ruling.
Medical records bearing the typed initials of the physician
These shouldn’t have been admitted.
“The trial court concluded that an electronic signature complies with the rule and that a physician’s typed initials at the end of the document are the equivalent of an electronic signature. Without fully resolving the issue of what constitutes a valid electronic signature, we disagree that mere typed initials at the end of the document are sufficient.” Morgan v. Macy’s,2016 TN Wrk. Comp. App. Bd. LEXIS 39, at *14 (Aug. 31, 2016).
A Tennessee Occupational Safety and Health Administration report as an expert’s opinion
A TOSHA report is inadmissible unless the proffering party takes additional steps to lay a proper foundation.
“In the present case, the TOSHA investigator reached a technical conclusion as to the apparent malfunction of the hood lift and the ultimate cause of the injury, and the trial court noted these conclusions in addressing the cause of employee’s injury. However, employee, as the proponent of the TOSHA report, did not establish the ‘knowledge, skill, experience, training, or education’ of the report’s author, as required by Rule 702. He also did not distinguish between factual information and expert conclusions in the report. The report was not accompanied by an affidavit. Finally, employee did not depose the author of the report or subpoena the investigator to the hearing, such that the investigator would be subject to cross-examination. In short, we conclude employee failed to lay a proper foundation for the introduction of expert conclusions contained in the TOSHA report.” Kizer v. Express Servs., Inc., 2018 TN Wrk. Comp. App. Bd. LEXIS 17, at *15-16 (Apr. 20, 2018).
Medical bills attached to the employee’s affidavit
These are inadmissible as unauthenticated hearsay.
“[T]he documents offered into evidence by employee were not medical records, but were medical bills and a compilation of such bills prepared by a third party. Even if such documents could fall within the definition of ‘medical records,’ they were not signed by a physician and were not accompanied by a proper certification. Moreover, they were not attached to an affidavit from a medical provider seeking to attest to their accuracy or completeness.” Eaves v. Ametek, Inc., 2018 TN Wrk. Comp. App. Bd. LEXIS 57, at *8 (Sept. 14, 2018).
Emails between counsel (about a referral to pain management)
These were inadmissible.
“[T]he record is devoid of any testimony or other evidence authenticating the emails, and statements of counsel made during an argument phase of a hearing are not evidence. Moreover, there was no affidavit or deposition accompanying the emails. Thus, we conclude it was an abuse of discretion for the trial court to admit the unauthenticated emails over employer’s objections.” Thompson v. Comcast Corp., 2018 TN Wrk. Comp. App. Bd. LEXIS 1, at *16 (Jan. 30, 2018).
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.