Opinion

Carter, James v. Ricoh America Corp.

  • 2020 TN WC App. 36
Court
Tennessee Workers' Compensation Appeals Board
Filed
Nov 2, 2020
Status
Published
On the bench
David F. Hensley, Timothy W. Conner, Pele I. Godkin
Cited by
0 cases
Authority
More cited than 14.5%

The opinion

FILED

Nov 02, 2020

12:03 PM(CT)

TENNESSEE

WORKERS' COMPENSATION

APPEALS BOARD

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

James Carter ) Docket No. 2015-06-0466

)

v. ) State File No. 43734-2015

)

Ricoh America Corp., et al. )

)

)

Appeal from the Court of Workers’ ) Heard October 15, 2020

Compensation Claims ) via WebEx

Kenneth M. Switzer, Chief Judge )

Affirmed and Remanded

In this interlocutory appeal, the employer asserts the trial court erred in granting the

employee’s motion to exclude the employer’s vocational expert in this cause. The

employer argues that restrictions caused by the COVID-19 pandemic and executive

orders issued by the Governor of Tennessee rendered it unable to meet deadlines set by

the trial court with respect to expert disclosures. As a result, according to the employer’s

argument, the trial court should have acknowledged its “excusable neglect” and permitted

it to present vocational expert proof at trial. Upon careful consideration of the record, we

affirm the trial court’s order and remand the case.

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

Judge David F. Hensley and Judge Pele I. Godkin joined.

Carolina V. Martin, Nashville, Tennessee, for the employer-appellant, Ricoh America

Corp.

Brian Dunigan, Goodlettsville, Tennessee, for the employee-appellee, James Carter

Factual and Procedural Background

James Carter, (“Employee”) was working for Ricoh America Corp. (“Employer”)

as a warehouse associate. He alleges that he felt low back pain while lifting a box at

work on June 5, 2015. Employer initiated workers’ compensation benefits, and

Employee was seen by several medical providers, including Dr. James Seely and Dr.

Greg Lanford. Employee was also evaluated by Dr. Stephen Kent, a physician selected

from the Bureau of Workers’ Compensation’s Medical Impairment Rating Registry

1

(“MIRR”). See Tenn. Code Ann. § 50-6-204(d)(5) (2019). In addition, Employer filed a

medical records review report completed by Dr. Jeffrey Hazlewood.

On April 6, 2020, the trial court entered an Order Resetting Status Conference. In

that order, the court stated that Employer “must file a notice with the Clerk on or before

April 15 identifying its vocational expert, if any.” (Emphasis added.) On April 15, 2020,

Employer filed a “Notice of Employer’s Intent to Depose Vocational Expert and to

Perform Vocational Assessment.” In its notice, Employer stated that it “has not been able

to retain an expert as of this date in light of lack of availability and issues related to the

C[OVID]-19 pandemic and stay-at-home orders issued by the governor.” Employer

stated in its notice it would “continue to make efforts to secure a qualified expert.”

Thereafter, on June 10, 2020, approximately eight weeks after the trial court’s deadline,

Employer filed a notice identifying its vocational expert and indicating its intent to

coordinate with opposing counsel the “scheduling of said evaluation at a mutually

agreeable time.” This notice was filed one day before Employer took the discovery

deposition of Employee’s vocational expert.

On June 22, 2020, Employee filed a motion to strike Employer’s vocational

expert, arguing that Employer’s counsel had made a “strategic choice” to delay

identifying its vocational expert until less than 24 hours before the discovery deposition

of Employee’s vocational expert, which was 56 days after the court’s April 15 deadline.

In response, Employer argued that Governor Lee’s Executive Orders 22, 23, and 27,

which required Tennesseans to stay at home unless engaging in “essential activities,”

prevented it from complying with the court’s April 15 deadline. Employer further argued

that the failure to abide by the trial court’s April 15 deadline constituted, at most,

excusable neglect. It also asserted that because no trial date had been set, Employee

could not demonstrate any degree of prejudice caused by its failure to abide by the trial

court’s deadline.

On July 2, 2020, the trial court granted Employee’s motion to strike Employer’s

vocational expert. In its order, the trial court reasoned that Employer never explained

why it was unable to retain and identify an expert by the court’s stated deadline even with

the Governor’s executive orders in place, noting an email from Employer’s vocational

expert that stated she “kept taking cases during the COVID-19 issue.” Also, the trial

court observed that Employer did not file a motion for an extension of time within the

original deadline or a motion to amend the court’s most recent scheduling order. The

trial court rejected what it called Employer’s effort at “gamesmanship and an attempt to

hide behind the veil of a pandemic” and granted Employee’s motion. Employer has

appealed.

2

Standard of Review

A trial court’s decision regarding pretrial discovery is discretionary and an

appellate court’s review of such a decision applies an “abuse of discretion” standard of

review. Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of Nashville, 154 S.W.3d 22, 42

(Tenn. 2005); Benton v. Snyder, 825 S.W.2d 409, 416 (Tenn. 1992). An abuse of

discretion is found if the trial court “applied incorrect legal standards, reached an illogical

conclusion, based its decision on a clearly erroneous assessment of the evidence, or

employ[ed] reasoning that causes an injustice to the complaining party.” Konvalinka v.

Chattanooga-Hamilton Cnty. Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008). “Whether

a court applied an incorrect legal standard is a question of law that is reviewed de novo.”

Funk v. Scripps Media, Inc., 570 S.W.3d 205, 210 (Tenn. 2019). We are required to

“review a [trial] court’s discretionary decision to determine (1) whether the factual basis

for the decision is properly supported by the evidence in the record, (2) whether the [trial]

court properly identified and applied the most appropriate legal principles applicable to

the decision, and (3) whether the [trial] court’s decision was within the range of

acceptable alternative dispositions.” Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524-25

(Tenn. 2010) (internal citations omitted). The abuse of discretion standard does not

permit us to merely substitute our judgment for that of the trial court. See Discover Bank

v. Morgan, 363 S.W.3d 479, 487 (Tenn. 2012).

Analysis

The dispositive issue in this appeal is whether the Court of Workers’

Compensation Claims abused its discretion in excluding any evidence from Employer’s

vocational expert. In the circumstances of this case, this is no small issue given that

Employee claims he was rendered permanently and totally disabled by his work-related

injury and, at trial, presumably will be able to offer vocational expert proof to that effect

with no countervailing vocational expert proof from Employer. Moreover, this question

is presented in the unique context of a nationwide pandemic that resulted in numerous

restrictions placed on the activities of most Americans, resulting in delays, continuances,

and schedule changes in courts across the state.

Nevertheless, despite the unique circumstances in which this appeal comes to us,

we can apply well-settled principles to the issue raised. The first such principle is that

trial courts are given broad discretion to control their dockets. Valladares v. Transco

Products, Inc., Nos. 2015-01-0117 & -0118, 2016 TN Wrk. Comp. App. Bd. LEXIS 31,

at *26 (Tenn. Workers’ Comp. App. Bd. July 27, 2016) (“a trial court has the necessary

discretion to control the pace of litigation through the use of case supervision and docket

management”); see also Smith v. Smith, No. E2017-01295-COA-R3-CV, 2019 Tenn.

App. LEXIS 59, at *20 (Tenn. Ct. App. Jan. 31, 2019) (“trial courts have broad discretion

to control their dockets”). A second such principle is that, when reviewing a trial court’s

discretionary decision on appeal, we must determine whether the trial court abused its

3

discretion. Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of Nashville, 154 S.W.3d 22,

42 (Tenn. 2005). It is well-settled that an abuse of discretion occurs only when the trial

court “applied incorrect legal standards, reached an illogical conclusion, based its

decision on a clearly erroneous assessment of the evidence, or employ[ed] reasoning that

cause[d] an injustice to the complaining party.” State v. Ostein, 293 S.W.3d 519, 526

(Tenn. 2009); Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249 S.W.3d 346,

358 (Tenn. 2008). 1

Turning to the merits of this appeal, we find nothing in this record to suggest the

trial court applied an incorrect legal standard. In its order granting Employee’s motion to

exclude, the court considered precedent discussing a trial court’s discretion to control the

pace of litigation, and it noted that this case involved an alleged work injury that occurred

almost five years prior to the hearing. Moreover, the court considered Rule 6.02 of the

Tennessee Rules of Civil Procedure and the meaning of the term “excusable neglect.”

Finally, the court analyzed the four-part test for the assessment of “excusable neglect” as

stated in Williams v. Baptist Memorial Hospital, 193 S.W.3d 545, 551 (Tenn. 2006), and

it concluded Employer had not met those factors. 2

Moreover, we cannot conclude the trial court reached an illogical conclusion in its

assessment of the Williams court’s four-part test or other relevant considerations, or that

it based its decision on a clearly erroneous assessment of the evidence. The question is

not whether we may have decided these issues differently but whether the trial court’s

findings were “illogical” or based on a “clearly erroneous” assessment. Stated another

way, we must determine whether the result reached by the trial court was within the

“range of acceptable alternative dispositions.” Lee Med., Inc., 312 S.W.3d at 524-25. We

conclude it was.

Employer insists that because no trial date had been set, Employee can point to no

actual prejudice he suffered as a result of Employer’s late filing. Employer first noted

Employee was aware of Employer’s intent to retain a vocational expert for several

months prior to the discovery deposition of Employee’s vocational expert. Employer

further denies there was any “gamesmanship,” as described by the trial court, in its late

filing of a notice identifying its expert one day before the discovery deposition of

1

In its brief on appeal, Employer cited the standard of review noted in Tennessee Code Annotated section

50-6-239(c)(7), which requires us to presume the findings and conclusions of the trial court are correct

unless the preponderance of the evidence is otherwise, but it failed to address the abuse of discretion

standard that applies to a trial court’s discretionary decisions. We conclude the test set forth in

Konvalinka above establishes the framework for our analysis.

2

The Williams court’s four-part test includes: (1) the risk of prejudice to the parties opposing the late

filing; (2) the delay and its potential impact on proceedings; (3) the reasons why the filings were late and

whether the reasons were within the filer’s reasonable control; and (4) the good or bad faith of the filer.

Williams, 193 S.W.3d at 551.

4

Employee’s vocational expert. During oral argument, Employer noted that this was a

discovery deposition, not a proof deposition, and Employee’s counsel did not object to

the occurrence of that deposition even though he learned the identity of Employee’s

vocational expert the previous day. Finally, Employer argued that it would have been

improper for it to identify a potential expert without knowing whether that expert could

arrange for an in-person evaluation due to COVID-19 restrictions imposed by the

Governor’s executive orders.

Yet, equally compelling was the trial court’s finding that Employer offered no

affidavit or other evidence supporting its statements regarding the difficulty in finding an

expert. Moreover, it noted that Employer could have filed a motion for an extension of

time or a motion to alter the court’s scheduling order, but it failed to do so. Instead,

Employer presumed that its “Notice of Employer’s Intent to Depose Vocational Expert

and Perform Vocational Assessment” was sufficient to put the court and the opposing

party on notice that it purportedly could not meet the court’s deadline. It is significant

that Employer did not identify its expert until fifty-six days after the expiration of the

court’s deadline.

Employer urges us to consider its April 15 Notice of Employer’s Intent to Depose

Vocational Expert and Perform Vocational Assessment as an “implied motion” for an

extension of time. Yet, the case Employer cites in support of this argument, State ex rel.

Jones v. Looper, 86 S.W.3d 189 (Tenn. Ct. App. 2000), stands for the proposition that a

trial court has the discretion to deny such an implied motion for an extension of time “if it

was not satisfied that the failure to file the [pleading] was due to excusable neglect.” Id.

at 196. In Looper, the Court of Appeals affirmed the trial court’s rejection of such an

“implied motion” and specifically held “there must be some application to the court for

relief from the failure to timely file [the pleading].” Id. In the present case, we cannot

conclude the trial court erred in determining Employer’s April 15 filing did not constitute

an application for relief from the court’s scheduling order or deadlines.

Finally, we cannot conclude the trial court’s order resulted in an injustice to

Employer. A stern or harsh result does not necessarily equate to an injustice. In Nelson

v. Justice, No. E2017-00895-COA-R3-CV, 2019 Tenn. App. LEXIS 35 (Tenn. Ct. App.

Jan. 25, 2019), the Tennessee Court of Appeals addressed a trial court’s action in

imposing sanctions pursuant to Rule 37 of the Tennessee Rules of Civil Procedure, which

allows such sanctions when a party fails to cooperate with discovery requests. The Court

of Appeals noted that Rule 37.03 “permits a trial court to exclude evidence when a party

fails to supplement discovery requests in accordance with Rule 26.05.” Id. at *57-8; see

also Murray v. Beard, No. E2006-01661-COA-R3-CV, 2007 Tenn. App. LEXIS 562, at

*14 (Tenn. Ct. App. Aug. 29, 2007) (“we cannot say that the trial court abused its

discretion” in excluding exert testimony as a sanction for the party’s failure to answer

written discovery); Dean v. Weakley Cnty. Bd. of Educ., No. W2007-00159-COA-R3-

CV, 2008 Tenn. App. LEXIS 218, at *37 (Tenn. Ct. App. Apr. 9, 2008) (the “usual

5

sanction” for failure to properly amend discovery responses is “exclusion of evidence at

trial”). Here, the trial court acted within its discretion in excluding from evidence

testimony of Employer’s vocational expert when Employer failed to abide by the terms of

the court’s scheduling order. We cannot conclude the trial court’s action resulted in an

injustice to Employer.

Conclusion

For the foregoing reasons, we affirm the trial court’s interlocutory order and

remand the case. Costs on appeal are taxed to Employer.

6

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

James Carter ) Docket No. 2015-06-0466

)

v. ) State File No. 43734-2015

)

Ricoh America Corp., et al. )

)

)

Appeal from the Court of Workers’ ) Heard October 15, 2020 via WebEx

Compensation Claims )

Kenneth M. Switzer, Chief Judge )

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 2nd day

of November, 2020.

Name Certified First Class Via Via Sent to:

Mail Mail Fax Email

Brian Dunigan X brian@poncelaw.com

Rita Duffy rita@poncelaw.com

Carolina V. Martin X carolina.martin@leitnerfirm.com

Crystal Brown crystal.brown@leitnerfirm.com

Kenneth M. Switzer, Chief Judge X Via Electronic Mail

Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov

Workers’ Compensation Claims

Olivia Yearwood

Clerk, Workers’ Compensation Appeals Board

220 French Landing Dr., Ste. 1-B

Nashville, TN 37243

Telephone: 615-253-1606

Electronic Mail: WCAppeals.Clerk@tn.gov

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.