Ernstes, Arlene v. Printpack, Inc.

FILED

Jun 06, 2023

02:05 PM(CT)

TENNESSEE

WORKERS' COMPENSATION

APPEALS BOARD

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Arlene Ernstes ) Docket No. 2020-07-0617

)

v. ) State File No. 66407-2020

)

Printpack, Inc., et al. )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Amber E. Luttrell, Judge )

Reversed and Certified as Final

This is the second appeal of this case. It concerns an employee who asserted she suffered

from noise-induced hearing loss caused by exposure to loud machinery over the course of

thirty-three years of employment, which ended in 2016. The employer, in denying her

claim, asserted the employee knew or reasonably should have known she had a work-

related hearing loss, at the latest, when she was diagnosed in 2019 and that she failed to

give proper notice of her alleged injury and failed to file her claim timely. Following a

compensation hearing, the trial court found the employee’s notice of injury was timely

and that her claim was not barred by the statute of limitations, and it awarded permanent

partial disability benefits, medical benefits made reasonably necessary by the employee’s

work-related hearing loss, and discretionary costs. In the first appeal, the employer

challenged the trial court’s determination that the employee had given timely notice of

her alleged work injury. We concluded the employee had not provided timely notice, but

we remanded the case for the trial court to make additional findings of fact regarding

whether the employee had offered a reasonable excuse for her failure to give proper

notice and whether the employer had suffered any prejudice caused by the lack of notice.

In a subsequent compensation order, the trial court determined the employee had offered

no reasonable excuse for her late notice but that the employer had likewise offered no

evidence that it was prejudiced by the lack of timely notice. It therefore reiterated its

original award in favor of the employee. The employer has appealed again. Upon

careful review of the record, statutory language, and relevant precedent, we reverse the

trial court’s order and certify the reversed order as final.

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

Judge Pele I. Godkin and Judge Meredith B. Weaver joined.

1

Gregory H. Fuller and Adam C. Brock-Dagnan, Knoxville, Tennessee, for the employer-

appellant, Printpack, Inc.

Jeffrey Boyd, Jackson, Tennessee, for the employee-appellee, Arlene Ernstes

Factual and Procedural Background

In our opinion in the first appeal, we summarized the factual and procedural

history of this case, in pertinent part, as follows:

Arlene Ernstes (“Employee”) worked for thirty-three years in

various positions for Printpack, Inc. (“Employer”) until 2016. Employee

testified that she “did everything in the plant . . . [f]rom loading trucks to

maintenance, cleaning the dyes, and everything.” Most of her time at work

was spent on the plant floor around loud machines, where, although

Employee wore hearing protection, she testified that she could still hear

loud noises. Employer performed annual hearing screens during her

employment, but Employee testified she never received copies of her test

results and never had the test results explained to her. Instead, Employee

was provided notes in her mailbox at work indicating whether she passed or

failed a test. She contended that noise exposure while working for

Employer resulted in binaural hearing loss, with an effective date of injury

of March 19, 2016, her last date of employment. 1

In December 2019, Employee was evaluated by Dr. Karl Studtmann,

an ear, nose, and throat physician, and his physician’s assistant at West

Tennessee ENT Clinic. Employee testified that she saw Dr. Studtmann in

2019 for dizziness and ear pain. Medical records reflect Employee

provided a history of “decreased hearing in both ears for many years now.

She states that it has progressively gotten worse. She denies any sudden

hearing changes or hearing worse in one ear than the other.” Employee

reported she had a sinus infection a few weeks prior to her visit and was

told she had fluid in her ears. She had experienced “some mild dizziness

upon standing” that would eventually pass and noted this had almost

completely resolved. Employee was diagnosed with bilateral sensorineural

hearing loss and referred to West Tennessee Speech and Hearing for

consultation regarding hearing aid use. She was advised to return to the

clinic if the dizziness returned or if she encountered any other issues.

1

For purposes of this appeal, it is undisputed by the parties that Employee’s only exposure to loud noises

occurred while working for Employer on its premises.

2

Employee testified that she first noticed gradual hearing problems

when she had to regularly turn up the volume on her television.

Employee’s granddaughters suggested she get hearing aids, and Employee

stated that she thought her hearing issues were related to her age.

Employee contended at trial that the first time she associated her hearing

loss with her employment was while attending a meeting with her husband

and his attorney in September 2020. 2 Following this meeting, Employee,

through counsel, sent notice of her injury to Employer and, on November

17, 2020, Employee filed a petition for workers’ compensation benefits.

....

On November 17, 2021, the parties took Dr. Studtmann’s deposition,

during which he testified that, based upon Employee’s history and her test

results, Employee had “findings consistent with a noise-induced hearing

loss and given that she has progression of that noise-induced hearing loss

over that time period, it’s likely related to noise exposure that she was

receiving during that time period.” Dr. Studtmann testified within a

reasonable degree of medical certainty that this was the primary cause of

Employee’s hearing damage and that she would retain a ten percent

impairment to the whole body.

Ernstes v. Printpack, Inc., No. 2020-07-0617, 2022 TN Wrk. Comp. App. Bd. LEXIS 44,

at *2-6 (Tenn. Workers’ Comp. App. Bd. Dec. 15, 2022) (footnote 2 added).

Following the trial in August 2022, the trial court concluded Employee had given

proper notice of her work-related hearing loss and had timely filed her claim. It awarded

Employee permanent partial disability benefits, medical benefits, and discretionary costs.

In its notice of appeal and brief, Employer challenged the trial court’s determination that

Employee had given proper notice of her work-related hearing loss. In our first opinion,

we agreed, concluding that Employee had admitted she believed loud noises at work were

the cause of her hearing loss as early as 2019 and, therefore, her notice to Employer in

late 2020 was not timely. However, because the parties and the court did not address

whether Employee had a reasonable excuse for the late notice and whether Employer had

suffered any prejudice caused by Employee’s late notice, we reversed in part and vacated

in part the trial court’s order, and we remanded the case for the court to consider the

issues of reasonable excuse for her failure to provide timely notice and prejudice to the

Employer.

2

During cross-examination, however, Employee admitted that she believed in 2019 her hearing loss was

caused by “all the loud noises.”

3

Thereafter, the trial court issued a subsequent compensation order in which it

concluded “[Employee’s] claim for benefits is not barred by her failure to give proper

notice of her injury.” The court concluded that Employee had failed to establish any

reasonable excuse for her failure to provide timely notice, but it also determined

Employer did not prove any prejudice caused by the lack of proper notice. Employer has

again appealed, asserting that the trial court failed to properly consider whether

Employee’s claim is barred by the expiration of the applicable statute of limitations and

erred in again rejecting its notice defense.

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) (2022). 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 (2022).

Analysis

On appeal, Employer challenges the trial court’s finding regarding the “reasonable

excuse” element of the notice issue, and it asserts the trial court failed to properly address

whether Employee’s statute of limitations had expired. We elect to address those issues

in reverse order.

Statute of Limitations

Tennessee Code Annotated section 50-6-203(b)(1) states as follows:

In instances when the employer has not paid workers’ compensation

benefits to or on behalf of the employee, the right to compensation . . . shall

be forever barred, unless the notice required by § 50-6-201 is given to the

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employer and a petition for benefit determination is filed with the

bureau . . . within one (1) year after the accident resulting in injury.

(Emphasis added.) In the present case, Employer asserts that both we and the trial court

“neglected to consider whether Employee’s claim is barred by the statute of limitations.”

For two reasons, we conclude this argument is without merit.

First, the trial court did, in fact, address Employer’s argument regarding the statute

of limitations in its first compensation order. Specifically, the trial court noted that “[t]he

discovery rule provides that the statute of limitations ‘is suspended until by reasonable

care and diligence it is discoverable and apparent that a compensable injury has been

sustained.’” (Quoting Linsey v. Acadia Healthcare Co. d/b/a Delta Medical Center-

Memphis, No. 2017-08-1276, 2019 TN Wrk. Comp. App. Bd. LEXIS 17, at *13 (Tenn.

Workers’ Comp. App. Bd. May 13, 2019)). The trial court then concluded,

“[Employee’s] [p]etition, filed within two months of her meeting with her attorney, is

timely and not barred by the statute of limitations.”

In its first appeal of this case, Employer did not challenge the trial court’s

determination regarding the statute of limitations. Instead, Employer focused its first

appeal on notice, identifying the issue on appeal as “whether the trial court erred in

concluding that Employee gave timely notice of her alleged hearing loss, as required by

[Tennessee Code Annotated section] 50-6-201(b).” It also did not address the alleged

expiration of the statute of limitations in its brief in the first appeal. Hence, Employer is

inaccurate in asserting that the trial court failed to “properly consider” the statute of

limitations issue in its original compensation order, and Employer did not raise the issue

in its appeal of that order. Consequently, we conclude, as we did in the initial appeal,

that the issue was waived. 3

Second, even if we were to address the statute of limitations issue, we conclude

Employer’s argument is without merit. In our opinion in the first appeal of this case, we

concluded that when Employee saw Dr. Studtmann in December 2019, Employee “knew,

or reasonably should have known, that her hearing loss was permanent and was caused

by noise exposure while working for Employer.” Hence, in accordance with Tennessee’s

discovery rule, the preponderance of the evidence supports a finding that Employee’s

statute of limitations did not begin to run until the date of her evaluation by Dr.

Studtmann in December 2019, and it is undisputed that Employee filed her petition for

benefits within one year thereafter, in November 2020. As a result, we conclude the trial

court did not err in determining that Employee complied with Tennessee Code Annotated

3

In Pope v. Nebco of Cleveland, Inc., 585 S.W.3d 874 (Tenn. Workers’ Comp. Panel Jan. 16, 2018),

counsel for the employee raised an issue for the first time during oral argument. The Supreme Court’s

Special Workers’ Compensation Appeals Panel addressed the failure to raise an issue on appeal:

“[B]ecause [Employee] did not raise this issue in the statement of issues on appeal in his brief, we deem

the issue waived and decline to address it.” Id. at 885 n.4.

5

section 50-6-203(b)(1) by filing her petition within one year of the date she knew or

reasonably should have known she had suffered a compensable work injury.

In its brief on appeal, Employer argues that Employee knew or reasonably should

have known that she had suffered work-related hearing loss prior to her appointment with

Dr. Studtmann in December 2019 and, therefore, her statute of limitations began to run

more than one year prior to the filing of her petition. In reviewing the record of this case,

however, we find little evidence supporting such a finding. During Employer’s cross-

examination of Employee, she testified that her only exposure to loud noises was during

her employment with Employer. She admitted that she noticed difficulty hearing

beginning in approximately 2017 or 2018. However, she further testified that she did not

believe her hearing loss was caused by exposure to loud noises until her appointment

with Dr. Studtmann in December 2019. In short, we conclude the preponderance of the

evidence supports a finding that Employee’s statute of limitations was triggered in

December 2019, and that her November 2020 petition for benefits was timely.

History of the Notice Requirement

Employer next argues that the trial court erred in rejecting its notice defense. We

conclude that a resolution of the notice issue requires some discussion of the history of

the relevant statutory provisions.

Tennessee’s first Workers’ Compensation Law, passed in 1919, included language

that underlies the current dispute. Section 22 of the 1919 Act required every injured

employee to “give or cause to be given to the employer written notice of the

injury . . . unless it can be shown that the employer had actual knowledge of the

accident.” 1919 Tenn. Pub. Acts, Ch. 123, § 22. Section 23 of that law stated that an

injured employee’s notice must “state in plain and simple language” certain basic

information about the work accident and must be signed by the claimant “or some person

on his behalf.” This section then provided: “But no defect or inaccuracy in the notice

shall be a bar to compensation unless the employer can show to the satisfaction of the

tribunal . . . that [it] was prejudiced by the failure to give proper notice and then only to

the extent of such prejudice.” 1919 Tenn. Pub. Acts, Ch. 123, § 23. Thus, from the very

beginning of Tennessee’s workers’ compensation laws, the burden of proof was shifted to

the employer to show prejudice when it affirmatively alleged a defect or inaccuracy in the

injured employee’s written notice.

In one of the first cases addressing this language, the Tennessee Supreme Court

considered sections 22 and 23 of the 1919 Act in Black Diamond Collieries v. Deal, 234

S.W. 322 (Tenn. 1921). In that case, the Supreme Court concluded there was “very little

room for construction of this language” and that “[i]ts meaning is quite plain.” Id. at 322.

In the Court’s view:

6

Unless the employer has actual knowledge of the accident, the employee

shall not be entitled to any compensation which may have accrued prior to

written notice to the employer. Unless such written notice is given within

thirty days after the occurrence of the accident[,] no compensation shall be

payable . . . except [where] a reasonable excuse for failure to give the notice

is made . . . . Such is the effect of section 22.

Section 23 relates to the form of the notice, but provides that a defective

notice shall not be a bar to compensation unless the employer can show that

[it] was thereby prejudiced . . . .

There must be written notice within thirty days, or there must be a

satisfactory excuse. Otherwise[,] compensation cannot be enforced. To

hold otherwise would be to disregard the provisions of the act.

Id. at 322-23. Hence, when the original notice provisions were considered by the

Supreme Court in 1921, the Court distinguished between cases where no timely notice

was given and no reasonable excuse was provided versus cases where defective notice

was given and the employer was required to prove prejudice.

This same language remained undisturbed for decades. In 1955, the notice

provisions were renumbered as sections 50-1001 and 50-1002, respectively. In 1984, the

sections were renumbered again as sections 50-6-201 and 50-6-202. By 2012, the year

before the General Assembly passed the Workers’ Compensation Reform Act of 2013

(“Reform Act”), the structure of these sections had been expanded to include new

provisions. Section 50-6-201(a) contained the basic notice requirement as stated in

section 22 of the 1919 Act as quoted above. Section 50-6-201(b) was added in 2001 to

address an injured employee’s notice obligation in gradual injury or cumulative trauma

cases. Section 50-6-202(a)(1) contained the language as expressed in section 23 of the

1919 Act regarding the contents of the notice, and section 50-6-202(a)(2) contained the

“defect and prejudice” language noted above. Thus, prior to the passage of the Reform

Act, the basic notice requirement was in one section of the law, but the language detailing

the form and content of the written notice and the “defect and prejudice” language were

in a separate section. See Tenn. Code Ann. §§ 50-6-201 & 202 (2012). From a structural

standpoint, as further supported by the Supreme Court’s opinion in Black Diamond

Collieries, it appeared that the shifting of the burden of proof to the employer to show

prejudice applied only in circumstances where the employer alleged a “defect or

inaccuracy” in the written notice the injured employee had provided. However, there was

no shifting of the burden of proof to show prejudice in circumstances where: (1) no

timely notice had been provided; (2) no actual knowledge of the employer was proven;

and (3) no reasonable excuse for lack of timely notice was shown.

7

When Tennessee’s General Assembly passed the Reform Act in 2013, it changed

the structure of the notice provisions. Now, instead of being in two separate sections, all

notice provisions are contained in section 50-6-201. Significantly, subsection 201(a) is

divided into three subparagraphs:

(a)(1) Every injured employee or the injured employee’s representative

shall, immediately upon the occurrence of an injury, or as soon thereafter as

is reasonable and practicable, give or cause to be given to the employer

who has no actual notice, written notice of the injury, and the employee

shall not be entitled to physician’s fees or to any compensation that may

have accrued under this chapter, from the date of the accident to the giving

of notice, unless it can be shown that the employer had actual knowledge of

the accident. No compensation shall be payable under this chapter, unless

the written notice is given to the employer within fifteen (15) days after the

occurrence of the accident, unless reasonable excuse for failure to give the

notice is made to the satisfaction of the tribunal to which the claim for

compensation may be presented.

(2) The notice of the occurrence of an accident by the employee required to

be given to the employer shall state in plain and simple language the name

and address of the employee and the time, place, nature, and cause of the

accident resulting in injury or death. The notice shall be signed by the

claimant or by some person authorized to sign on the claimant’s behalf, or

by any one (1) or more of the claimant’s dependents if the accident resulted

in death to the employee.

(3) No defect or inaccuracy in the notice shall be a bar to compensation,

unless the employer can show, to the satisfaction of the workers’

compensation judge before which the matter is pending, that the employer

was prejudiced by the failure to give the proper notice, and then only to the

extent of the prejudice.

Tenn. Code Ann. § 50-6-201 (2022). 4 Thereafter, subsection 201(b), which pertains to

gradual injury and cumulative trauma cases, requires the injured worker to provide notice

of a gradual injury within fifteen (15) days after the employee:

(1) Knows or reasonably should know that the employee has suffered a

work-related injury that has resulted in permanent physical impairment; or

4

The Reform Act originally preserved the thirty-day notice requirement from pre-reform law, but the

General Assembly amended these provisions again in 2016 to reduce the notice requirement from thirty

days to fifteen days in all cases except occupational disease cases. See Tenn. Code Ann. § 50-6-305(a).

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(2) Is rendered unable to continue to perform the employee’s normal work

activities as a result of the work-related injury and the employee knows or

reasonably should know that the injury was caused by work-related

activities.

Tenn. Code Ann. § 50-6-201(b). 5 Although the General Assembly did not alter any of

the language of section 202, it did alter the structure of the notice provisions. Hence, we

must now consider whether subsection 201(a)(3), which contains the “defect and

prejudice” language, must be considered in every case where an injured employee fails to

give timely notice as contemplated in subsection 201(a)(1). Stated another way, the issue

is whether lateness of notice is necessarily a “defect” as that term is used in section

201(a)(3) and, if so, whether the burden of proof shifts to the employer in every “late

notice” case to show prejudice caused by the lateness of the employee’s notice. 6

Moreover, by moving the “defect and prejudice” language into subsection 201(a), and

making it a subpart of the general notice provisions, we must also consider whether such

language still applies in cases involving an alleged gradual injury or cumulative trauma,

which is governed by section 201(b).

Principles of Statutory Construction

We previously addressed principles of statutory construction in Thompson v.

Comcast Corp., No. 2017-05-0639, 2018 TN Wrk. Comp. App. Bd. LEXIS 1, at *24

(Tenn. Workers’ Comp. App. Bd. Jan. 30, 2018), as follows:

When construing a statute, our goal is to ascertain and give effect to the

legislative intent without unduly restricting or expanding a statute’s

coverage beyond its intended scope. We determine legislative intent from

the natural and ordinary meaning of the statutory language within the

context of the entire statute without any forced or subtle construction that

would extend or limit the statute’s meaning. Further, Tennessee Code

Annotated § 50-6-116 . . . provides that the workers’ compensation statutes

“shall not be remedially or liberally construed but shall be construed fairly,

impartially, and in accordance with basic principles of statutory

5

It is significant to note that from 2001 until the Reform Act was passed in 2013, section 50-6-202, which

contained the “defect and prejudice” language and the burden-shifting mechanism, followed the language

of section 201(b). With the passage of the Reform Act, the “defect and prejudice” language and the

burden-shifting mechanism, which was moved to section 201(a)(3), now precedes the language in section

201(b) governing gradual injuries and cumulative trauma conditions. The wording of section 201(b) was

not changed by the Reform Act.

6

As a practical matter, there is no litigated case where written notice was never given. The filing of a

petition for benefits is, itself, notice to the employer of the employee’s alleged work-related injury. Thus,

instead of speaking in terms of “no notice,” we can only consider cases in terms of “late notice.”

9

construction[,] and this chapter shall not be construed in a manner favoring

either the employee or the employer.” In addition, we must construe a

statute so that no part will be inoperative, superfluous, void, or

insignificant. We are required to give effect to every word, phrase, clause,

and sentence of the act in order to achieve the Legislature’s intent[,] and we

must construe a statute so that no section will destroy another.

(Some internal citations and quotation marks omitted.) Moreover, if statutory language is

ambiguous, we are directed to “look to the statutory scheme as a whole, as well as

legislative history, to discern its meaning.” Carter v. Happy Trucking Co., No. M2004-

00357-WC-R3-CV, 2005 Tenn. LEXIS 475, at *11-12 (Tenn. Workers’ Comp. Panel

May 17, 2005).

Tennessee’s appellate courts have addressed the concept of statutory ambiguity in

multiple cases, as recently summarized by the Tennessee Court of Appeals:

In determining whether statutory language is ambiguous, courts are not to

put on blinders to all considerations outside the specific text in question. In

all cases involving statutory construction, judges must look not only at the

language of the statute, but also its subject matter, the object and reach of

the statute, the wrong or evil which it seeks to remedy or prevent, and the

purpose sought to be accomplished in its enactment. Furthermore, statutes

should not be interpreted in isolation. The overall statutory framework

must be considered, and statutes that relate to the same subject matter or

have a common purpose must be read in pari materia so as to give the

intended effect to both. Depending on the circumstances of a given case,

consideration of the statute’s purpose, its evolution over the course of time,

and a longstanding interpretation by the affected parties may be needed to

properly evaluate whether a proffered alternate interpretation is a

nonsensical or clearly erroneous interpretation of a statute. As such, any

initial perception on whether a statute appears ambiguous should not be

used in a mechanistic manner that disregards interpretive information.

In re Houston D., 660 S.W.3d 704, 714 (Tenn. Ct. App. 2022) (internal citations and

quotation marks omitted). In addition, the legislature’s act of retaining language after

judicial interpretation of such language may suggest a finding of legislative acquiescence

of such interpretation. See, e.g., Coffee Cty. Bd. of Educ. v. City of Tullahoma, 574

S.W.3d 832, 848 (Tenn. 2019) (legislature’s awareness of Attorney General opinions

interpreting statutory language led to finding of legislative acquiescence); Thompson v.

Memphis City Sch. Bd. of Educ., 395 S.W.3d 616, 629 (Tenn. 2012) (legislature’s “failure

to express disapproval of a judicial construction of a statute” is persuasive evidence of

legislative adoption of the judicial construction).

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We conclude the structure and certain language of Tennessee Code Annotated

section 50-6-201 are ambiguous. First, it is unclear whether the language now appearing

in sections 201(a)(2) and 201(a)(3), which was applied to gradual injury claims prior to

the effective date of the Reform Act, still applies to such claims given the changes made

to the structure -- but not to the language -- of section 201. Second, it is unclear whether

the term “defect” as used in subparagraph 201(a)(3) applies only to the contents of an

employee’s written notice, which is the interpretation supported by pre-reform cases from

the Tennessee Supreme Court, or whether the lateness of that notice can constitute a

“defect” that shifts the burden of proof to the employer to show prejudice. Consequently,

we must look to legislative history, “the statutory scheme as a whole,” relevant precedent,

and other principles of statutory construction to discern the intent of the General

Assembly.

Gradual Injury and Cumulative Trauma Claims

The Tennessee Supreme Court has recognized gradual injury and cumulative

trauma claims since at least the 1960s. In Brown Shoe Co. v. Reed, 350 S.W.2d 65

(Tenn. 1961), the employee alleged he suffered a left arm injury “as a result of repeated

movement of the left hand and arm . . . in the operation of a machine.” Id. at 66. The

employee was diagnosed with an ulnar nerve injury. Id. The trial court awarded benefits

and the employer appealed, arguing there had been no compensable injury, the employee

had not given notice of the alleged injury “until long after it happened,” and “no suit was

brought within a year from the happening of the injury.” Id. at 68. The Supreme Court

rejected each of these arguments. First, with respect to whether a cumulative trauma

condition can be compensable under Tennessee’s Workers’ Compensation Law, the

Court explained, “[I]t unquestionably appears from this proof that these repeated injuries

to this nerve, no one of which resulted in disabling him, but the accumulation of which,

resulted in substantial permanent disability to this arm.” Id. The Court then concluded,

“This repeated trauma to these nerves produced this injury.” Id. at 69.

Second, the Court in Reed rejected the employer’s notice and statute of limitations

defenses. It cited Professor Larson’s treatise in concluding that “the date of accident for

gradual loss of use . . . was held to be the date on which this development finally

prevented claimant from performing his work.” Id. at 69-70. Thus, when the employee

reported to the on-site first aid station and complained he was no longer able to perform

his job functions due to his arm pain, “[t]his then amounted to the fact that the employer

did have notice of the claimed injury.” Id. Finally, in comparing gradual injuries to

occupational diseases, the Court noted that “the statute of limitations commences to run

when the accumulated effects of the latent disease culminate in a disability which is

traceable to such disease as the primary cause and which is apparent to the employee or

could have been discovered by the exercise of reasonable care and diligence.” Id.

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More recently, the Workers’ Compensation Appeals Panel analyzed the issue of

notice in a gradual injury case in Peeler v. Kimberly-Clark Corp., No. E2001-00541-WC-

R3-CV, 2002 Tenn. LEXIS 139 (Tenn. Workers’ Comp. Panel Mar. 8, 2002). The

employee in Peeler asserted she had suffered gradual injuries to both hands while

operating a machine at work. Id. at *2. She suffered pain and swelling in her hands in

1998 and 1999 and was evaluated by a physician in April 1999. Id. at *3. That physician

attributed her symptoms to non-work-related osteoarthritis. Id. The employee last

worked for defendant in July 1999. Id. Then, in September 1999, the employee saw a

rheumatologist, who later testified that he advised the employee at the first visit that her

work activities had aggravated or contributed to her condition. Id. at *4. The trial court

concluded the employee had not provided proper notice to her employer and had not

offered any reasonable excuse for her failure to provide notice. Id. at *5.

On appeal, the Appeals Panel analyzed the notice issue:

Our statute, Tenn. Code Ann. § 50-6-201, requires an employee to

give written notice to the employer of a work-related injury unless the

employer has actual notice of the injury. The notice must be given within

30 days after the accident or becoming reasonably aware of the injury

unless a reasonable excuse exists for not complying with the rule.

In determining whether an employee has shown a reasonable excuse

for failure to give such notice, courts will consider the following criteria:

(1) the employer’s actual knowledge of the employee’s injury, (2) lack of

prejudice to the employer by an excusing of the requirement, and (3) the

excuse or inability of the employee to timely notify the employer. Delay in

asserting a compensable claim is reasonable and justified if the employee

has limited understanding of his condition and his rights and duties under

the Act.

In cases of this nature, we find it is reasonable for a lay person to not

be aware that a gradual injury may result in a compensable workers’

compensation claim as opposed to an accident on-the-job causing an

immediate injury. However, upon being examined by a physician and

being told that work activities [are] causing, or aggravating or contributing

to the employee’s physical problems, a reasonable person would be on

notice of a work-related injury.

Id. at *7-8 (internal citations omitted). Thus, prior to the 2001 amendment adding

language in section 50-6-201 to address notice requirements in gradual injury and

cumulative trauma cases, our appellate courts considered prejudice to the employer as an

element of the “reasonable excuse” analysis and also considered whether the delay in

providing notice (lateness) was justified under the particular circumstances of the case.

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More recently, in Jenkins v. Goodyear Tire & Rubber Co., No. W2014-02303-SC-

R3-WC, 2016 Tenn. LEXIS 175 (Tenn. Workers’ Comp. Panel Mar. 15, 2016), the

Supreme Court’s Special Workers’ Compensation Appeals Panel addressed notice in a

hearing loss case and explained as followed:

We are persuaded . . . that the [Supreme] Court has not established

an absolute rule that a doctor’s opinion connecting an injury to the

employee’s work is the only factor that can be considered as the starting

point for the statute of limitations. In the cases cited, the employee testified

that he did not know that the injury was permanent and work related until

the doctor advised him of his opinion. The Courts, therefore, cite the date

of the medical opinion as the only conclusive proof of when the employee

knew he had a work-related injury. In Mayton v. Wackenhut Services, [No.

E2010-00907-WC-R3-WC, 2011 Tenn. LEXIS 620, at *14 (Tenn.

Workers’ Comp. Panel July 18, 2011),] the Panel recognized that other

proof in the record could show that the statute began to run at an earlier

date than the date of the doctor’s opinion. In that case the Panel said:

Although employee argues that he cannot be found to have

had knowledge that his illness was work-related until he

received information from a doctor to that effect, he presents

no authority providing that a doctor’s diagnosis is required to

establish that an employee has knowledge that his or her

condition is work-related where evidence is presented

showing that the employee has specifically stated that the

condition is work-related.

[Id. at *14.] We return, therefore, to the general rule stated in Gerdau:

when, through the exercise of reasonable care and diligence, did it become

discoverable and apparent that the employee sustained a compensable

injury?

Id. at *8-9 (citing Gerdau Ameristeel, Inc. v. Ratliff, 368 S.W.3d 503 (Tenn. 2012)). We

note the language quoted above because the same test informs our analysis of whether

proper notice of the gradual injury was given in this case: When, through the exercise of

reasonable care and diligence, did it become discoverable and apparent that Employee

sustained a compensable injury?

Finally, it is clear that Tennessee’s appellate courts consistently applied the pre-

reform provisions of section 202 addressing defect and prejudice (now in subsections

201(a)(2)-(3)) to gradual injury cases. For example, in Grayson v. Healthtrust, Inc., No.

01S01-9607-CH-00153, 1997 Tenn. LEXIS 502 (Tenn. Workers’ Comp. Panel Oct. 21,

1997), the employee claimed she suffered from carpal tunnel syndrome. In addressing

13

whether the employee had provided proper notice of her alleged gradually-occurring

injury, the Appeals Panel explained, “[We] must, therefore, determine whether or not the

evidence preponderates against the trial court’s finding that plaintiff failed to give notice

of her work-related injury to her employer as required by Tenn. Code Ann. Sec. 50-6-201

and Sec. 50-6-202, and if there exists a reasonable excuse for not complying with the

rule.” Id. at *5; see also Roberts v. Marco Printing Co., No. M1998-00197-WC-R3-CV,

1999 Tenn. LEXIS 673 (Tenn. Workers’ Comp. Panel Dec. 20, 1999) (considering

whether the employee offered a reasonable excuse for not giving timely written notice to

the employer of his alleged gradual injury); Riddle v. Murray Outdoor Prods., No.

02S01-9706-CH-00058, 1998 Tenn. LEXIS 108 (Tenn. Workers’ Comp. Panel Mar. 3,

1998) (considering reasonable excuse and undue prejudice in gradual injury case); Fisher

v. Textron Aerostructures, No. 01S01-9005-CH-00044, 1990 Tenn. LEXIS 426 (Tenn.

Nov. 13, 1990) (general notice rules apply “whether the worker sustains a gradual injury

or one from a single incident”). 7

Reasonable Excuse for Failure to Provide Timely Notice

As noted above, Employer contends the trial court erred in its analysis regarding

notice. We previously addressed the issue of notice in gradual injury cases in Maples v.

8

Federal-Mogul Corp., No. 2015-04-0039, 2016 TN Wrk. Comp. App. Bd. LEXIS 8

(Tenn. Workers’ Comp. App. Bd. Feb. 17, 2016). There, the employee alleged she

injured her hands due to repetitive work activities. Id. at *3. There was conflicting

testimony as to when she first reported hand-related symptoms to a physician and when

she first believed such symptoms were related to work activities. Id. at *4-5. The

employee subsequently testified she informed her supervisor she could no longer work

due to her hand pain on August 1, 2014. Id. at *7. It was not until November 2014,

however, when the employee’s orthopedic physician directly related her hand condition

to her work activities, that she notified her employer that she wanted to file a workers’

compensation claim. Id. at *12-13. The employee subsequently filed a petition for

7

On this issue, there is relevant legislative history that supports our analysis. On March 26, 2013, in a

hearing before the Tennessee Senate’s Finance, Ways and Means Committee, then-Administrator of the

Division of Workers’ Compensation, Abigail Hudgens, was asked about the impact of the Reform Act on

statutory notice provisions. Senator Jim Kyle asked, “So, in all the case law we have – if I was a

practitioner – all the case law we have on notice to the employer is still good if this law passes? We’re

not changing any parts of that standard whatsoever?” Administrator Hudgens replied, “No, sir.” Hearing

on S.B. 0200 before the Senate Finance, Ways, and Means Comm., 108th Gen. Assemb. (Mar. 26, 2013)

(statements of Sen. Jim Kyle and Administrator Abigail Hudgens).

8

Employer’s notice of appeal identifies one issue as “whether the court erred in determining that

Employee provided a reasonable [missing word].” We infer Employer intended to add the word “excuse”

after the word “reasonable.” Even if that was the intended word, however, the trial court concluded

Employee had not provided a reasonable excuse for her failure to give timely notice. Nevertheless,

Employer’s brief fairly raises the notice issue and challenges our previous cases interpreting the notice

provisions of Tennessee’s Workers’ Compensation Law.

14

benefits in May 2015. Id. at *13. On appeal, we affirmed the trial court’s determination

that the employee had a reasonable excuse for her failure to give notice within thirty days

of the date she stopped working. Id. at *24.

Subsequently, in Simmons v. RHA/Trenton, Inc., No. 2016-07-0249, 2017 TN

Wrk. Comp. App. Bd. LEXIS 10 (Tenn. Workers’ Comp. App. Bd. Feb. 1, 2017), we

addressed the analysis required when assessing whether an employee had a “reasonable

excuse” for the failure to provide proper notice under Tennessee Code Annotated section

50-6-201(a). There, the employee alleged suffering a low back injury while assisting a

patient. Id. at *2. He admitted that he did not provide notice of the accident to the

employer that day; however, later that evening or early the next morning, the employee’s

wife called for an ambulance, and the employee was transported to a local emergency

room due to low back pain. Id. Although the employee’s wife texted the employee’s

supervisor later the next morning to advise the employer that the employee could not

work that day, there was no evidence she advised the employer of a work-related accident

at that time. Id. There was conflicting testimony as to when the employer was informed

of the alleged work accident. Id. at *3.

In considering the issues of notice and reasonable excuse, we explained that the

“appropriate analysis” was addressed in Dorris v. Am. Limestone Co., No. M2002-00741-

WC-R3-CV, 2003 Tenn. LEXIS 321 (Tenn. Workers’ Comp. Panel Apr. 25, 2003):

[N]o benefits are recoverable unless [the] written notice is given within 30

days after the injurious occurrence, unless the injured worker has a

reasonable excuse for the failure to give the required notice. . . . Whether or

not the excuse offered by an injured worker for failure to give timely notice

is sufficient depends on the particular facts and circumstances of each case.

The presence or absence of prejudice to the employer is a proper

consideration . . . . In determining whether an employee has shown a

reasonable excuse for failure to give such notice, courts will consider the

following criteria in light of the . . . reasons for the rule: (1) the employer’s

actual knowledge of the employee’s injury, (2) lack of prejudice to the

employer by an excusal of the notice requirement, and (3) the excuse or

inability of the employee to timely notify the employer.

Id. at *4-5 (emphasis added); see also McCaleb v. Saturn Corp., 910 S.W.2d 412, 415

(Tenn. 1995) (“The reasons for the [notice] requirement are (1) to give the employer an

opportunity to make an investigation while the facts are accessible, and (2) to enable the

employer to provide timely and proper treatment for the injured employee.”). We then

concluded in Simmons as follows:

[I]n circumstances where an employer alleges late notice in accordance

with section 201(a)(1), prejudice or lack of prejudice to the employer is one

15

of the relevant considerations in assessing whether the employee offered a

reasonable excuse for the late notice. Furthermore, in circumstances where

an employer alleges defective or inaccurate notice in accordance with

section 201(a)(3), the employer has the burden of proving the extent of any

prejudice resulting from the employee’s defective notice before any relief

can be granted.

Simmons, 2017 TN Wrk. Comp. App. Bd. LEXIS 10, at *8.

Finally, in Mitchell v. AECOM d/b/a Shimmick Construction, Inc., No. 2020-01-

0494, 2021 TN Wrk. Comp. App. Bd. LEXIS 28 (Tenn. Workers’ Comp. App. Bd. Aug.

18, 2021), we affirmed a trial court’s interlocutory order for medical benefits. In that

case, the employer alleged the employee had failed to provide proper notice of a hand

injury. Id. at *2. With respect to the issue of notice, the trial court determined that

Employee had a reasonable excuse for his failure to provide notice prior to a certain

medical appointment but that he had failed to give timely notice after being told at that

medical appointment that the infection in his hand was caused by the work accident. Id.

at *5-6. Nevertheless, because the employer had offered no evidence indicating it was

prejudiced by the late notice, the trial court ordered additional medical benefits. Id. at *6-

7. In affirming this determination, we stated as follows:

While the presence or absence of prejudice to an employer is a factor to be

considered in determining the reasonableness of an employee’s excuse for

not giving timely notice, see McCaleb v. Saturn Corp., 910 S.W.2d 412,

415 (Tenn. 1995), section 50-6-201(a)(3) clearly places the burden on the

employer to show “that the employer was prejudiced by the failure to give

the proper notice[.]” Tenn. Code Ann. § 50-6-201(a)(3). Moreover, even if

prejudice is shown, an employer is entitled to relief “only to the extent of

the prejudice.” Id.

Id. at *11.

In the present case, Employer asserts that we have improperly addressed the

distinction between an employee’s failure to give timely written notice as described in

subsection 201(a)(1) versus a defect in the contents of the notice as described in

subsections 201(a)(2) and 201(a)(3). In Employer’s view, the failure of an injured

employee to give timely written notice combined with the failure of the injured employee

to prove a reasonable excuse for the lack of timely notice must result in a denial of the

claim. Moreover, according to Employer’s argument, to the extent that any of our prior

opinions suggest that the burden of proof shifts to an employer in every “late notice” case

to show prejudice to the employer caused by improper notice under subsection 201(a)(1),

such opinions are incorrect. Conversely, Employee asserts that we have previously

analyzed the issue correctly and should affirm the trial court’s order.

16

Conclusions of Law

We conclude that, when the legislature moved the provisions of Tennessee Code

Annotated section 50-6-202 to section 50-6-201(a), without altering the language itself, it

expressed no specific intent to restrict the application of that language to all cases other

than gradually-occurring or cumulative trauma injuries. Given that such language has

been referenced and applied in gradual injury cases prior to the passage of the Reform

Act, it would represent a significant change in the law to now conclude that such

language no longer applies in gradual injury cases. Further, as noted above, at least one

verbal exchange between a legislator and the Administrator during a committee hearing

addressing the Reform Act evidences the intent not to change prior case law interpreting

notice provisions as a result of the passage of the Reform Act.

In future cases, therefore, we conclude that trial courts evaluating the issue of

notice should consider the following:

A. Did the employee provide timely written notice of the alleged work-related injury?

See Tenn. Code Ann. § 50-6-201(a)(1).

B. If no timely written notice was provided, did the employer have “actual

knowledge” of the alleged work-related accident or injury? See Tenn. Code Ann.

§ 50-6-201(a)(1).

C. If no timely written notice was provided and no actual knowledge has been

proven, did the employee show a “reasonable excuse” for the failure to give proper

notice to the employer? See Tenn. Code Ann. § 50-6-201(a)(1). In considering

whether the employee has shown by a preponderance of the evidence a reasonable

excuse, a court can consider, among other things: (1) the employer’s actual

knowledge of the employee’s injury, (2) lack of prejudice to the employer by an

excusal of the notice requirement, and (3) the excuse or inability of the employee

to timely notify the employer. See Dorris, 2003 Tenn. LEXIS 321, at *4-5.

However, as previously stated by the Tennessee Supreme Court, “[l]ack of

prejudice alone would not be sufficient to excuse notice.” Aluminum Co. of Am. v.

Rogers, 364 S.W.2d 358, 361 (Tenn. 1962).

D. If the court determines that: (1) no timely written notice was provided; (2) the

employer did not have actual knowledge of the alleged accident or injury; and (3)

the employee did not prove a reasonable excuse for the failure to give timely

notice, the claim should be denied and dismissed.

E. If written notice was provided, but the employer affirmatively asserts there was a

defect or inaccuracy in the notice, the burden of proof shifts to the employer to

prove actual prejudice it suffered as a result of the defective or inaccurate notice

and, if such prejudice is found, the trial court can fashion a remedy, if appropriate,

“only to the extent of the prejudice.” See Tenn. Code Ann. §§ 50-6-201(a)(2), (3).

17

To the extent any of our prior opinions state or imply that the employer has the

burden of proving prejudice in every case where lack of timely written notice is alleged,

we clarify that the employee first has the burden of proving that: (1) timely written notice

was provided; (2) the employer had actual knowledge of the accident or injury; or (3) the

employee has a reasonable excuse for the failure to provide timely written notice. See

Fisher, 1990 Tenn. LEXIS 426, at *8 (“The burden of proof is on the employee to show

proper notice when this defense has been asserted by the employer.”). It is when an

employer affirmatively asserts a defect or inaccuracy in the written notice as described in

subsections 201(a)(2)-(3) that the burden shifts to the employer to prove prejudice.

Here, on remand, the trial court concluded Employee had not shown by a

preponderance of the evidence any reasonable excuse for her failure to give timely

written notice of her alleged work-related hearing loss after her medical appointment with

Dr. Studtmann in December 2019. Therefore, because no timely written notice was

provided, no actual knowledge of the employer was shown, and no reasonable excuse

was proven by a preponderance of the evidence, the claim should have been denied and

dismissed. We therefore reverse the trial court’s order and dismiss Employee’s petition.

Conclusion

For the foregoing reasons, we reverse the trial court’s order awarding benefits and

certify as final the trial court’s compensation order as reversed. Costs on appeal are taxed

to Employee.

18

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Arlene Ernstes ) Docket No. 2020-07-0617

)

v. ) State File No. 66407-2020

)

Printpack, Inc., et al. )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Amber E. Luttrell, 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 6th day

of June, 2023.

Name Certified First Class Via Via Sent to:

Mail Mail Fax Email

Adam C. Brock-Dagnan X acbrock-dagnan@mijs.com

ghfuller@mijs.com

Jeffrey P. Boyd X jboyd@borenandboyd.com

scallison@borenandboyd.com

Amber E. Luttrell, Judge X Via Electronic Mail

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