Briefly Speaking – Case Law Update Tennessee By: Ben Norris | Nashville

Braden v. Mohawk Industries, Inc., et al.

Court:                   Workers’ Compensation Appeals Board      

Order Date:        3/1/2022       

Order:                  Click Here

Issue:                    Direct and Natural Consequences Rule

Summary:           The employee, a truck driver, reported suffering a right ankle injury when he tripped and

fell while unloading a strapped roll of carpet. Employee received a compensable surgery to repair a fracture in the right ankle. After returning to work without restrictions, the employee reported another incident resulting in a “pop” in his ankle and a significant increase in his symptoms while walking. An MRI revealed a tendon tear necessitating another surgery. Following a Compensation Hearing, the trial court determined the second reported incident was a direct and natural consequence of the initial compensable work injury and not caused by any negligent act of the Employee. According to the Appeals Board’s summary of the Direct and Natural Consequences Rule, the employee must come forward with evidence supporting a finding that the subsequent injury “flowed from” or was a “natural consequence” of the original compensable injury; and the employer can respond by showing that the actions of the employee leading to the subsequent injury constituted negligence, recklessness, or intentional conduct that broke the chain of causation. They concluded that nothing in the 2013 Workers’ Compensation Reform Act expressly abrogated or limited the scope of the direct and natural consequences rule.  The employee offered medial expert testimony that the original work injury increased his risk of and made him more susceptible to experiencing a peroneal tendon tear and there was no evidence that Employee’s action on the date of the second injury were negligent, reckless, or intentional. The Appeals Board affirmed and certified as final the order of the trial court.

Key Takeaway for Carriers and Employers: The Direct and Natural Consequences Rule often surfaces where an employee suffers a subsequent injury while recovering from their original work injury. In Braden, the Appeals Board held the Direct and Natural Consequences Rule was not limited in any way by the 2013 Workers’ Compensation Reform Act. As a result, only negligent, reckless, or intentional actions (e.g. not abiding by the doctor’s restrictions or instructions) from an employee will serve to break the chain of causation where the employee suffers a subsequent injury that would otherwise be compensable under the Direct and Natural Consequences Rule.

Russell v. Aluma-Form, Inc.

Court:                   Tennessee Supreme Court Workers’ Compensation Appeals Panel

Order Date:        4/21/2022       

Order:                  Click Here

Issue:                    Unauthorized Medical Treatment

Summary:           The employee suffered injuries to his cervical spine, left shoulder, and left elbow and initially received authorized treatment from several specialists. After the employee continued to report pain in these body parts despite negative MRI scans and a negative EMG test, the authorized treating physicians each noted they could find no objective findings to support the employee’s pain complaints and released the employee from their care. The employee then informed his employer he was going to seek unauthorized care on his own and began seeing a specialist of his choosing. After a trial, the trial court found the employee had proven a compensable injury to his shoulder and ordered the employer to satisfy the medical expenses he received for the unauthorized care with his specialist. On appeal, the Tennessee Supreme Court Workers’ Compensation Appeals Panel initially noted “the clear weight of authority suggests that awarding costs for unauthorized treatment based on justified circumstances ought to be quite rare.” However, it decided the trial court did not err in awarding medical expenses for the unauthorized care in this case. In support of its affirmance on this issue, the court cited the fact the employee had only sought unauthorized care after his authorized physicians had released him and that he had kept his employer informed of his progress in treatment with his unauthorized specialist.

Key Takeaway for Carriers and Employers: Courts will generally refrain from awarding an employee costs for unauthorized treatment but an exception will be made when the employee can show his or her decision to seek unauthorized care was reasonable under the circumstances.

Bailey v. Amazon, et al.

Court:                   Workers’ Compensation Appeals Board      

Order Date:        5/3/2022       

Order:                  Click Here

Issue:                    Noncompliance with Medical Treatment

Summary:           The employee reported an injury to her right arm and shoulder when it was struck by a large cart at work. The employer initially accepted the claim as compensable and provided a proper panel from which the employee selected the ATP. Following two missed medical appointments, the employer denied the claim without asking the employee for an explanation and refused to authorize additional medical care. In an effort to support its denial, the employer sent the ATP a questionnaire containing misstatements of law. At an Expedited Hearing, the employee offered evidence that she had Covid-19 during the first appointment and was unaware of the second appointment. The trial court concluded that the employee never “refused” to accept the medical treatment under Tenn. Code Ann. § 50-6- 204(d)(8) and the employee had come forward with sufficient evidence to show a likelihood of prevailing at trial with respect to her claim for additional medical benefits. On appeal, the Appeals Board held it is proper for the trial court to give little weight to an expert’s response when the question contains one or more misstatements of law or fact. Regarding the denial for noncompliance under Tenn. Code Ann. § 50-6- 204(d)(8), the Appeals Board concluded the employer’s decision to deny the employee’s claim based on her missing two medical appointments, without considering any explanation as to why she missed the appointments, was unsupported by Tennessee law. Further, the delay in treatment caused by Employer’s unsupported denial of the claim is far more onerous under the circumstances of this case than the two missed medical appointments. The trial court’s order was affirmed and remanded.

Key Takeaway for Carriers and Employers: Under Tenn. Code Ann. § 50-6-204(d)(8) missing appointments will not be considered “refusal” of medical treatment where the employer does not seek an explanation from the employee before issuing a notice of denial. Furthermore, the proper remedy for noncompliance is suspension of compensation during the period of noncompliance—not denial.

Holt v. Quality Floor Coverings, LLC, et al.

Court:                   Workers’ Compensation Appeals Board      

Order Date:        5/6/2022       

Order:                  Click Here

Issue:                    Employee’s Failure to Respond to Discovery

Summary:           After the employer served the employee with Requests for Admissions pursuant to Rule 36 of Tennessee Rules of Civil Procedure, the employee did not serve timely responses. The employer then filed a motion asking the court to deem its Requests for Admission admitted. In response to the motion, the employee filed responses to the employer’s Requests for Admissions but did not file a motion seeking additional time to respond to the requests. The trial court denied the employer’s motion on the basis that it failed to comply with Rule 0800-02-21-.17(5)(c), which requires motions involving discovery-related disputes to include a statement certifying that the moving party made a good-faith effort to resolve by agreement the issues in the motion. The Appeals Board concluded that Rule 36 is self-executing, so the failure to respond to Requests for Admissions does not give rise to a dispute such that the “good faith” requirement of Tenn. Comp. R. and Regs. 0800-02-21-.17(5)(c) is implicated. In addition, because the rule is self-executing, the party propounding the Requests for Admissions does not need to file a motion to have the matters admitted when responses are not provided within 30 days. Rather, the matters are automatically deemed admitted unless the trial court decides that further time to respond is reasonable under the circumstances.

Key Takeaway for Carriers and Employers: When a party fails to timely (within 30 days) respond to a Rule 36 Request for Admissions, the matters are “conclusively established” unless the court on motion permits withdrawal or amendment of the admission. In disputed cases, employers can go on the offensive by retaining counsel to propound discovery requests on the employee early on in the claim. Requests for Admissions are particularly useful for this strategy, as they require the employee to respond within 30 days or risk having facts unfavorable to them conclusively established in the case.

Williams v. People Ready, Inc., et al.

Court:                   Workers’ Compensation Appeals Board      

Order Date:        6/2/2022       

Order:                  Click Here

Issue:                    Direct and Natural Consequences Rule

Summary:           The employee, a construction laborer, reported experiencing knee and neck pain when a large metal pipe struck his left leg and pinned him momentarily. The employer did not provide an initial panel but instead accepted the compensability of the claim and initiated benefits by directing the employee to a walk-in clinic. After several weeks of evaluation and treatment, the provider at the walk-in clinic made a “stat” referral to an orthopedic specialist. Employee began treatment with the specialist 2 days later. Approximately one month later, the employer’s representative became aware of the referral provided the employee a panel of orthopedic specialists and informed the employee that treatment with the orthopedic physician he had already seen was unauthorized. The employee declined to select a new orthopedic physician from the employer’s panel. Following an Expedited Hearing, the trial court ordered the employer to authorize treatment with the specialist the employee had seen upon the referral of the clinic. The Appeals Board affirmed the trial court’s finding and held it was reasonable for employee to treat with the orthopedic because the employer failed to provide an initial panel when they knew employee needed medical treatment. Further, because the employer failed to satisfy the statutory requirements, the Appeals Board held the subdivisions of Tenn. Code Ann. § 50-6-204(a)(3)(A), which require the panel-selected physician to “immediately notify the employer” when making a referral to a specialist, are not applicable.

Key Takeaway for Carriers and Employers: Employers who do not provide an initial panel when an employee reports an injury assume the risk of not receiving timely notification of referrals to specialists.  In its ruling in this case, the Appeals Board made clear employers may not take advantage of the direct referral “notice” requirement under Tenn. Code Ann. 50-6-204(a)(3)(ii) unless the provider that made the referral was selected from a panel.