Batey, Christopher v. Deliver This, Inc.

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

(HEARD JANUARY 10, 2018, IN JACKSON)

Christopher Batey ) Docket No. 2016-05-0666

)

v. )

) State File No. 19123-2015

Deliver This, Inc., et al. )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Thomas Wyatt, Judge )

Affirmed in Part, Modified in Part, and Certified as Final –

Filed February 6, 2018

In this case presenting issues of first impression, the employee was awarded 275 weeks

of permanent partial disability benefits pursuant to Tennessee Code Annotated section

50-6-242 (2017), which allows such relief in “extraordinary” cases if the employee

proves certain criteria. In addition, following a post-trial motion hearing, the trial court

denied the employee’s motion for pre-judgment interest. The employer has appealed the

trial court’s order awarding the enhanced permanent partial disability benefits, and the

employee has appealed the trial court’s order denying pre-judgment interest. Upon

careful consideration of the record, we affirm in part and modify in part the trial court’s

orders, and we certify both orders as final.

Judge Timothy W. Conner delivered the opinion of the Appeals Board in which Presiding

Judge Marshall L. Davidson, III, and Judge David F. Hensley joined.

Michael L. Haynie, Nashville, Tennessee, for the employer-appellant, Deliver This, Inc.

D. Russell Thomas, Murfreesboro, Tennessee, for the employee-appellee, Christopher

Batey

Factual and Procedural Background

Christopher Batey (“Employee”), a forty-six-year-old resident of Cannon County,

Tennessee, worked as a delivery driver for Deliver This, Inc. (“Employer”). On February

24, 2015, while bending over to wrap a pallet, Employee felt a “pop” and immediate pain

1

in his low back and left leg. He was provided a panel of physicians and selected Dr.

Melvin Law, an orthopedic surgeon, as his authorized treating physician. Dr. Law

diagnosed a large disc herniation at L5-S1 and, after Employee completed a course of

physical therapy, recommended surgery.

Following surgery, Employee continued to complain of weakness and pain in his

left leg, and Dr. Law concluded he retained some degree of permanent nerve dysfunction.

He placed Employee at maximum medical improvement on August 19, 2015, and

assigned a permanent medical impairment rating of 14% to the body as a whole.1 He also

released Employee to “return to work at this time” and listed no permanent work

restrictions.2

In an October 26, 2015 report, a nurse practitioner in Dr. Law’s office noted that

Employee “is currently not working.” Employee still had complaints of pain, and the

nurse practitioner recommended a foraminal steroid injection due to chronic lumbar pain.

A referral was made for pain management at that time. On January 6, 2016, the nurse

practitioner noted on-going lumbar pain with neuritis and radiculitis.3

In a March 29, 2016 Standard Form Medical Report (Form C-32), Dr. Law noted

in the “Functional Capacity Assessment” section certain physical limitations, including

limits on lifting, prolonged sitting, prolonged standing or walking, repetitive pushing or

pulling, and frequent or repetitive climbing, balancing, stooping, kneeling, crouching,

crawling, or twisting. In a February 2017 deposition, Dr. Law testified that, in his

opinion, Employee “would not be able to return to his pre-injury status” at work. On

cross-examination, however, Dr. Law admitted that he had previously released Employee

to return to work as of August 19, 2015, with no permanent work restrictions. Upon

further questioning, Dr. Law drew a distinction between formal work restrictions and

physical “limitations” based on his review of Employee’s functional assessment. On July

26, 2017, Dr. Law completed a Physician Certification Form opining that Employee’s

permanent restrictions prevented him from performing his pre-injury occupation. Dr.

1

During his deposition, Dr. Law acknowledged that he originally assigned an impairment rating of 10%

to the body as a whole, which he then increased to 14%. He could not recall a specific reason for the

increase, but testified it was likely due to Employee’s residual symptoms and on-going nerve dysfunction.

2

In the medical records introduced as Exhibit 4 during the trial, there were two forms entitled “Final

Medical Report” (Form C-30A). On the first, which is undated, Dr. Law indicated that Employee could

return to “restricted duty” as of August 19, 2015. On the second, dated August 19, 2015, Dr. Law

indicated that Employee could return to “regular duty” as of that date.

3

Each report electronically signed by the nurse practitioner was also reviewed and “electronically co-

signed” by Dr. Law.

2

Law, or someone on his behalf, typed an additional sentence onto the form stating, “[t]his

is per my testimony by deposition and the job description in the deposition.”4

During the compensation hearing, the primary issue was the amount of the

permanent disability benefits to which Employee was entitled. Both parties presented

testimony from vocational experts, and Employee sought one of three remedies: (1)

permanent total disability pursuant to Tennessee Code Annotated section 50-6-207(4)(A)

(2017); (2) “extraordinary” relief up to a maximum of 275 weeks of permanent partial

disability benefits pursuant to Tennessee Code Annotated section 50-6-242(a)(2); or (3)

increased benefits pursuant to Tennessee Code Annotated section 50-6-207(3)(B).

Employer denied that Employee was entitled to any of these remedies, and asserted it was

responsible only for an “original award” based on the degree of permanent medical

impairment.

The trial court concluded Employee was entitled to permanent partial disability

benefits of 275 weeks pursuant to the “extraordinary” relief described in section 50-6-

242(a)(2). In so holding, the trial court considered the six criteria identified in the statute:

(1) Employee was eligible for increased benefits pursuant to section 50-6-207(3)(B) (also

called a “resulting award”); (2) Employee was assigned a permanent medical impairment

rating at or above 10% to the body as a whole; (3) the treating physician certified that

Employee could not perform his “pre-injury occupation”; (4) Employee was not earning

wages equal to or greater than 70% of his pre-injury salary; (5) limiting Employee’s

award to the increased benefits as provided in section 50-6-207(3)(B) would be

inequitable; and (6) Employee’s case was “extraordinary.” Employer has appealed the

compensation order.5

Following the issuance of the compensation order, Employee filed several post-

trial motions, including a motion for pre-judgment interest. Following a motion hearing,

the trial court denied Employee’s motion, concluding the exclusive remedy provisions of

4

The trial court observed in footnote 5 of its compensation hearing order that the parties had submitted

over 350 pages of medical records reviewed by Dr. Law in preparation for his deposition. The trial court,

after reviewing the deposition, concluded that a review of those records was unnecessary to its

determination of the issues. The court further indicated that, in the event of an appeal, the parties could

file a motion with the Appeals Board “to determine if it will accept the subject records as part of the

record on appeal.” However, we caution that such a motion would be inappropriate, as we have noted on

numerous previous occasions that we will not consider information on appeal that was not admitted into

evidence and considered by the trial court. See, e.g., Hadzic v. Averitt Express, No. 2014-02-0064, 2015

TN Wrk. Comp. App. Bd. LEXIS 14, at *13 n.4 (Tenn. Workers’ Comp. App. Bd. May 18, 2015) (“[W]e

will not consider on appeal testimony, exhibits, or other materials that were not properly admitted into

evidence at the hearing before the trial judge.”); see also Tenn. Comp. R. & Regs. 0800-02-22-.04(1)

(2015) (“Evidence not contained in the record submitted to the clerk of the workers’ compensation

appeals board shall not be considered on appeal.”).

5

Employee has not appealed the trial court’s decision not to award permanent total disability benefits.

3

the Workers’ Compensation Law and cases interpreting this language precluded an award

of pre-judgment interest. Employee has appealed that order.

Standard of Review

The standard we apply in reviewing a trial court’s decision presumes that the

court’s factual findings are correct unless the preponderance of the evidence is otherwise.

See Tenn. Code Ann. § 50-6-239(c)(7) (2017). When the trial judge has had the

opportunity to observe a witness’s demeanor and to hear in-court testimony, we give

considerable deference to factual findings made by the trial court. Madden v. Holland

Grp. of Tenn., Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar

deference need be afforded the trial court’s findings based upon documentary evidence.”

Goodman v. Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at

*6 (Tenn. Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and

application of statutes and regulations are questions of law that are reviewed de novo

with no presumption of correctness afforded the trial court’s conclusions. See Mansell v.

Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are

also mindful of our obligation to construe the workers’ compensation statutes “fairly,

impartially, and in accordance with basic principles of statutory construction” and in a

way that does not favor either the employee or the employer. Tenn. Code Ann. § 50-6-

116 (2017).6

Analysis

Permanent Disability Benefits

The manner in which a trial court determines an injured worker’s eligibility for

permanent disability benefits is governed primarily by two statutes: Tennessee Code

Annotated sections 50-6-207 and 50-6-242. When a worker suffers a compensable work

injury, reaches maximum medical improvement, and is assigned a permanent medical

impairment rating, he or she is entitled to receive permanent disability benefits. See

Tenn. Code Ann. § 50-6-207(3)(A). The amount of such benefits is calculated by

multiplying the employee’s medical impairment rating by 450, then multiplying the result

by the employee’s weekly compensation rate. This amount is designated the “original

award.” An injured worker is entitled to the “original award” regardless of his or her

employment status as of the date of maximum medical improvement. Id.

6

Employee relies on the former standard of review embodied in Tennessee Code Annotated section 50-6-

217(a)(3) (repealed 2017). Section 50-6-217(a)(3) authorized us to reverse or modify a trial court’s

decision if the rights of a party were prejudiced because the findings of the trial judge were “not

supported by evidence that is both substantial and material in light of the entire record.” However, this

code section was deleted effective May 9, 2017. Consequently, as noted above, the standard we apply in

reviewing the trial court’s decision presumes that the trial judge’s factual findings are correct unless the

preponderance of the evidence is otherwise. Tenn. Code Ann. § 50-6-239(c)(7).

4

If, at the end of the initial period of compensation (the number of weeks

represented by the original award), the employee has not returned to work for any

employer at an equal or greater rate of pay as before the injury, then the employee

qualifies for an increased benefit equal to 1.35 times the original award (minus a credit

for payment of the original award). A trial court can further increase this award if: (1) the

employee lacks a high school diploma or general equivalency diploma; (2) the employee

is over the age of 40 at the time the initial period of compensation ends; or (3) the

unemployment rate in the employee’s Tennessee county of employment was at least two

percentage points higher than the state’s unemployment rate at the time the initial period

of compensation ends. Id. These additional benefits are generally called an “increased

award” or “increased benefits.”

If an employee qualifies for increased benefits as provided in section 50-6-207(3),

but the trial court finds the employee’s case to be “extraordinary” pursuant to section 50-

6-242(a)(2) and further determines by clear and convincing evidence that limiting the

injured worker to the increased benefits in section 207(3)(B) would be inequitable in light

of the totality of the circumstances, the trial court can award permanent partial disability

benefits not to exceed 275 weeks if three additional facts are shown: (1) the employee’s

medical impairment rating is 10% or higher; (2) the authorized treating physician has

certified on a Bureau form that the employee “no longer has the ability to perform the

employee’s pre-injury occupation” due to “permanent restrictions on activity” caused by

the work accident; and (3) at the time of trial, the employee is earning less than 70% of

his or her pre-injury average weekly wage or salary. See Tenn. Code Ann. § 50-6-242(a).

In the alternative, if a trial court finds that the work injury “totally incapacitates

the employee from working at an occupation that brings the employee an income,” it can

award the employee permanent total disability benefits, which are paid at the employee’s

weekly compensation rate from the date of maximum medical improvement until the date

the employee qualifies for “full benefits in the Old Age Insurance Benefit Program under

the Social Security Act.” See Tenn. Code Ann. § 50-6-207(4).

In the present case, Employee alleged at trial entitlement to: (1) permanent total

disability benefits under section 207(4); or, in the alternative, (2) “extraordinary relief”

under section 242(a)(2); or, in the alternative, (3) increased benefits under section

207(3)(B). Employer argued in the trial court that because Employee was originally

released to return to work without restrictions and unreasonably failed to return to work,

he should have been limited to the original award as provided in section 207(3)(A).7

Following the compensation hearing, the trial court concluded that Employee qualified

for extraordinary relief pursuant to section 242(a)(2) and awarded 275 weeks of

permanent partial disability benefits. Although we disagree with several of the trial

7

This argument appears to be based on Employee’s alleged failure to seek or obtain employment with any

employer, as counsel for Employer noted during trial that his client had gone out of business.

5

court’s determinations, we conclude the evidence does not preponderate against the

award of permanent partial disability benefits pursuant to Tennessee Code Annotated

section 50-6-242(a)(2).

Extraordinary Relief

First, with respect to the “qualifying” criteria for application of section 242(a)(2),

the trial court concluded that Employee was eligible for increased benefits, that

Employee’s case was “extraordinary,” and that limiting Employee’s award to the benefits

provided in section 207(3)(B) would be “inequitable in light of the totality of the

circumstances.” Among other findings, the trial court considered the fact that limiting

Employee to the benefits provided in section 207(3)(B) would result in Employee’s

receiving a permanent partial disability award significantly less than the vocational

disability ratings of both testifying vocational experts. In consideration of this and the

totality of the circumstances, we conclude the evidence does not preponderate against the

trial court’s determination on this issue.

Second, with respect to the three additional factors listed in section 242(a)(2),

there is no question the authorized treating physician assigned a permanent medical

impairment rating of at least ten percent to the body as a whole. It is also undisputed that,

at the time of trial, Employee was not earning an average weekly wage or salary greater

than or equal to seventy percent of his pre-injury average weekly wage or salary. Thus,

the critical issue is whether Employee established that the authorized treating physician

had properly certified that Employee “no longer has the ability to perform the employee’s

pre-injury occupation.” It is on this issue that we diverge from the trial court’s analysis.

In considering whether Employee satisfied the criteria concerning the certification

of the authorized treating physician, the trial court concluded that “[Employee]’s

submission of the certification signed by Dr. Law established [this] factor . . . by clear

and convincing evidence.” We conclude, however, the statute does not require an injured

worker to establish this factor by clear and convincing evidence. Instead, the plain

language of the statute requires a trial court to find by clear and convincing evidence only

that limiting the employee’s recovery to the benefits provided in section 207(3)(B) would

be “inequitable in light of the totality of the circumstances.” Thereafter, if the trial court

makes such a finding, then the three factors listed in section 242(a)(2)(A)-(C) need only

be established by a preponderance of the evidence.

This interpretation is further supported by the language in section 242(a)(2)(B),

which specifies the employer’s burden of proof in rebutting the injured worker’s evidence

but says nothing about the injured worker’s burden of proof. In circumstances where an

employee offers into evidence the required certification form signed by the authorized

treating physician, the opinion as reflected on that form is accorded a presumption of

correctness, and the burden shifts to the employer to prove, by “contrary clear and

6

convincing evidence,” that the employee has the ability to perform his or her pre-injury

occupation.

In the present case, Dr. Law signed a “Physician Certification Form,” which is the

relevant form available from the Bureau of Workers’ Compensation, certifying that

Employee “no longer has the ability to perform the employee’s pre-injury occupation.”

Employer asserts that by adding a sentence to the form (“This is per my testimony by

deposition and the job description in the deposition.”), Dr. Law qualified his opinion that

Employee cannot return to his pre-injury occupation and, as a result, the burden-shifting

mechanism described in section 242(a)(2)(B) was never triggered. Therefore, under

Employer’s theory, Employee failed to satisfy the necessary criteria in section

242(a)(2)(B) and, as a result, Employer had no burden to satisfy.

We disagree. The sentence Dr. Law added to the certification form does not

detract from the previous sentence certifying that the employee “no longer has the ability

to perform the employee’s pre-injury occupation.” Instead, the additional sentence adds

to his opinion by referencing his deposition testimony and the job description attached

thereto. Once Dr. Law signed the certification form and it was properly submitted to the

court, Employee’s burden of establishing this criteria as required by section 242(a)(2)(B)

was satisfied. The burden then shifted to Employer to show, by “contrary clear and

convincing evidence,” that Employee was capable of performing his pre-injury

occupation. Employer did not meet this burden.

Pre-Injury Occupation

Employer next argues that the trial court erred in concluding Employee established

he “no longer has the ability to perform [his] pre-injury occupation” due to permanent

restrictions on his activities. Specifically, Employer asserts the trial court erred in

defining the term “pre-injury occupation” to include only “the job held by the employee

at the time of the injury.” Since the phrase “pre-injury occupation” is not defined in the

statute, we must consider its plain and ordinary meaning. See Maupin v. Methodist Med.

Ctr., No. E1999-02181-WC-CV, 2000 Tenn. LEXIS 102, at *4 (Tenn. Workers’ Comp.

Panel Mar. 2, 2000) (“In construing a statute, proper interpretations should give effect to

the entire statute by giving its words their natural and ordinary meaning.”). Black’s Law

Dictionary defines the term “occupation” as “a person’s usual or principal work or

business.” Black’s Law Dictionary (10th ed. 2014). Merriam-Webster defines

“occupation” as “an activity in which one engages.” Merriam-Webster Dictionary,

https://www.merriamwebster.com/dictionary/occupation (last visited Feb. 6, 2018). The

plain and ordinary meaning of the word “occupation” includes more than a specific job,

but describes the type of work one does as his or her “usual or principal work.”

Moreover, we must consider the statutory context in which the term is used. To

qualify for “extraordinary” relief as described in section 242(a)(2), an employee must

7

first show that he or she did not return to work for “any employer” at an equal or greater

rate of pay as noted in section 207(3)(B). In other words, having returned to work as of

the date the initial period of compensation ends at any job that pays at least as much as

the employee’s pre-injury job will disqualify that worker from receiving increased

benefits, which, in turn, would disqualify that same worker from seeking extraordinary

relief under section 242(a)(2). It would be incongruous to conclude that an employee can

get increased benefits under section 207(3)(B) only by showing he or she did not return

to work for “any employer” at an equal or greater rate of pay, but can satisfy section

242(a)(2)(B) merely by showing that he or she was unable to return to “the job held by

the employee at the time of injury,” as was found by the trial court. Stated another way,

it would be illogical to conclude the criteria to qualify for extraordinary relief under

section 242(a)(2) is less burdensome than the criteria to qualify for “increased benefits”

under section 207(3)(B).

Thus, we agree with Employer that the trial court’s definition of “employee’s pre-

injury occupation” as used in section 242(a)(2)(B) is too restrictive. Instead, section

242(a)(2)(B) requires a physician to certify that the injured employee is incapable of

returning to that employee’s pre-injury “occupation,” as that term is commonly

understood. Employee asserts, and the trial court agreed, that such an interpretation

would place an unreasonable burden on injured workers, since a person’s “occupation”

may encompass innumerable potential jobs. Under Employee’s argument, most

physicians will be unable, or at least reluctant, to sign such a certification without

sufficient information as to the physical requirements of every potential job within that

injured worker’s “occupation.” However, such an argument is more appropriately

directed to the General Assembly.8

Furthermore, as discussed above, the statute requires only that the injured worker

submit the required certification form signed by the authorized treating physician, and the

burden then shifts to the employer to establish, by contrary clear and convincing

evidence, that the injured worker is capable of returning to a job within his or her pre-

injury occupation. In the present case, the required physician certification form was

signed and properly admitted into evidence. We previously concluded that the additional

language added by Dr. Law did not negate the required certification. Thus, Dr. Law’s

certification is entitled to a presumption of correctness and the burden shifted to

8

We also note that both parties presented expert vocational testimony during trial. In his November 2,

2016 report, Employee’s expert concluded that, “[g]iven the residual functional limitations . . .,

[Employee] is precluded from resuming future employment above a restricted range of activities at the

limited [l]ight exertional demand level.” In her July 19, 2017 report, Employer’s vocational expert

acknowledged that if the limitations set out in Dr. Law’s Form C-32 are accepted, Employee “[c]ould

perform a limited range of light work.” Given that both vocational experts concluded Employee’s prior

occupation as a truck driver fell within the medium to heavy job classification, such information would

support Dr. Law’s certification that Employee is unable to return to his pre-injury occupation.

8

Employer to show, by contrary clear and convincing evidence, that Employee was

capable of returning to his pre-injury occupation. No such evidence was presented in this

case. As a result, although we conclude the trial court erred in its interpretation of the

phrase “pre-injury occupation,” we also conclude this error was harmless under the

circumstances presented, since Employer did not meet its burden of rebutting Dr. Law’s

certification by “contrary clear and convincing evidence” as set forth in section

242(a)(2)(B).

Pre-judgment Interest

Finally, Employee asserted in a post-trial motion his entitlement to pre-judgment

interest, which the trial court denied. Employee argues on appeal that while pre-reform

law indicated pre-judgment interest was unavailable in workers’ compensation cases, see,

e.g., Woodall v. Hamlett, 872 S.W.2d 677 (Tenn. 1994) (holding the statute authorizing

pre-judgment interest is inapplicable in workers’ compensation cases due to the exclusive

remedy provision in Tennessee Code Annotated section 50-6-108), this issue should be

reconsidered in light of the recent amendments to the Workers’ Compensation Law.

However, the pertinent language in Tennessee Code Annotated section 50-6-108

(2017), which describes the benefits available under the Workers’ Compensation Law as

an injured worker’s exclusive remedy, has not changed. As a result, we find nothing in

the Workers’ Compensation Reform Act of 2013, or subsequent amendments, that

authorizes an award of pre-judgment interest pursuant to Tennessee Code Annotated

section 47-14-123 (2017).9 Accordingly, we find Employee’s argument to be without

merit and affirm the trial court’s order denying pre-judgment interest.

Conclusion

For the foregoing reasons, we conclude the trial court erred in defining an

employee’s burden of proof under Tennessee Code Annotated section 50-6-242(a)(2) and

in defining the phrase “employee’s pre-injury occupation” as used in subsection

242(a)(2)(B). However, we conclude these errors were harmless under the circumstances

presented and, therefore, affirm the trial court’s determinations as to Employee’s

entitlement to permanent partial disability benefits. We also affirm the trial court’s denial

of Employee’s claim for pre-judgment interest. All other aspects of the compensation

hearing order are affirmed, and the order, as modified, is hereby certified as final. The

order denying pre-judgment interest is likewise certified as final.

9

We also note that Tennessee Code Annotated section 50-6-225(c)(1) (2017) defines how an injured

worker’s entitlement to post-judgment interest is calculated in certain circumstances, but does not

authorize an award of pre-judgment interest.

9

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Christopher Batey ) Docket No. 2016-05-0666

)

v. ) State File No. 19123-2015

)

Deliver This, Inc., et al. )

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the

referenced case was sent to the following recipients by the following methods of service

on this the 6th day of February, 2018.

Name Certified First Class Via Fax Via Email Address

Mail Mail Fax Number Email

D. Russell Thomas X russthomas@thethomaslawfirm.com

kathryn@thethomaslawfirm.com

Michael Haynie X mhaynie@manierherod.com

mgrimmig@manierherod.com

Thomas Wyatt, Judge X Via Electronic Mail

Kenneth M. Switzer, X Via Electronic Mail

Chief Judge

Penny Shrum, Clerk, X Penny.Patterson-Shrum@tn.gov

Court of Workers’

Compensation Claims

Jeanette Baird

Deputy Clerk, Workers’ Compensation Appeals Board

220 French Landing Dr., Ste. 1-B

Nashville, TN 37243

Telephone: 615-253-0064

Electronic Mail: WCAppeals.Clerk@tn.gov