Petition for Writ of Certiorari — Brown v. Campbell County Board of Education

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27 1996

No. MAR

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SUPREME COURT OF THE UNITERSTATES

OCTOBER TERM 1995

ALICE SUE BROWN,

Petitioner,

V.

CAMPBELL COUNTY BOARD OF EDUCATION,

LARRY BRINTON, JR., DIRECTOR OF THE

DIVISION OF WORKERS’ COMPENSATION,

TENNESSEE DEPARTMENT OF LABOR,

SECOND INJURY FUND, STATE OF TENNESSEE,

and CHARLES BURSON, ATTORNEY GENERAL

FOR THE STATE OF TENNESSEE,

Respondents.

On Petition for Writ of Certiorari to the

Supreme Court of The State of Tennessee

PETITION FOR WRIT OF CERTIORARI

David H. Dunaway* David Hart Nelson

DAVID H. DUNAWAY 1504 Dairy Road

& ASSOCIATES Charlottesville, VA 22903

100 South Fifth Street (804) 293-5750

Post Office Box 231

LaFollette, TN 37766

(423) 562-7085

*Counsel of Record for Petitioner

March 27, 1996

LANTAGNE LEGAL PRINTING

801 Last Main Street Suite 100 Richmond, Virginia 23219 (800) 847.0477

QUESTIONS PRESENTED

1. Does Tennessee Code Annotated §§ 50-6-241

which sets out the methods for determining permanent partial

disability benefits under Tennessee's Workers’ Compensation

Act, violate the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution?

2. Does Tennessee Code Annotated §§ 50-6-241 and

50-6-242, Tennessee's Workers’ Compensation Act, which

distinguishes among claimants for permanent partial disability

benefits on account of educational attainments violate the

Equal Protection Clause of the Fourteenth Amendment to the

United States Constitution?

3. Does Tennessee Code Annotated § 50-6-241

impermissibly conflict with the Americans with Disabilities

Act of 1990, 42 U.S.C. § 701 et seg, or Section 794 of the

Rehabilitation Act of 1973, 29 U.S.C. § 710 et seq.?

ii

PARTIES TO THE PROCEEDINGS

Petitioner Alice Sue Brown (“Brown”), was an

employee of Respondent Campbell Board of Education

(“Board of Education”). The Respondent Board of Education

operates the public schools in Campbell County, Tennessee,

and was Brown's employer. Respondents Larry Brinton, Jr.,

Director of the Division of Workers’ Compensation,

Tennessee Department of Labor, Second Injury Fund, State

of Tennessee, and Charles Burson, Attorney General for the

State of Tennessee, collectively referred to hereinafter as “the

State,” are the Tennessee State officials charged with

administering and defending the statutes whose

constitutionality under the United States Constitution, and

lack of fidelity to federal statute law, are being contested by

Brown in these proceedings.

TABLE OF CONTENTS

GEGEe MUINEMIED «nw Sv eecenvectereretse i

PARTIES TO THE PROCEEDINGS.............. ii

pr ee ee | ee ee ee ee oe iv

ee OT ia 008 oid OSS 0 FR Lie e's BeBe l

V0 tt EPPS PET OE COCT TL eee ee eee ee 2

CONSTITUTIONAL AND STATUTORY PROVISIONS 3

STATEMENT OF THE CASE 2 Fi vie ccc cence 3

REASONS FOR GRANTING THE PETITION ...... 6

1. This case presents a significant constitutional issue

regarding whether a recent amendment to Tennessee's

Workers' Compensation Law, affecting thousands of

employers and employees in that state, denies equal

protection to injured workers by discriminating between

workers whose medical problems are recognized by

American Medical Society Guides and those who problems

OES NE A 6b es SRA a Re URS G Ze 6

iv

2. This case also presents a significant issue regarding

whether recent amendments to Tennessee's Workers'

Compensation Law, which affect thousands of employers

and employees in that state, deny equal protection to

injured workers by discriminating between educated and

SS a 19

3. This case presents an important Supremacy Clause

issue regarding whether Tennessee Code Annotated § 50-

6-241 impermissibly conflicts with the Americans with

Disabilities Act of 1990, 42 U.S.C. § 701 et seq. or Section

794 of the Rehabilitation Act of 1973, 29 U.S.C. § 710 et

SE FRESE ATR EE ETAT EE CER UER EOE CEN S ce eee 26

I ded aD we & 30

TABLE OF AUTHORITIES

CASES:

Alexander v. Swank,

314 F. Supp. 1082 (N.D. 111 1970) ......... 24

Civil Service Merit Board v. B

816 S.W.2d 725 (Tenn. 1991) ............ 12

ey a

861 F. Supp. 512 (E.D. Va. 1994) ......... 28

ee ee nae ae 21

SECA 00 MB tae AL a ARB MY POE OED Seales SRLS

he ee Se Ped Cane DAY Re

Vv

ED tev e eb aeeene 21

Dandrid Willi

FI ee 15

Ei it v. Baird

I TD ck oc tee beeeeves 13

French v. Heyne,

og & & Ry Vo 7. ) rae 26

: ion ‘

ee De OE | ) 19

Groves v. Singleton,

RS lg RE Te |} rr 22

Harrison v. Schrader,

569 S.W.2d 822 (Tenn. 1978) ............ 21

Helen L. v, DiDari

46 F.24 325 (3rd Cir. 1995) ........... 27, 29

H 7 i A r,

ENE ee re 12

Massachusetts Board of Retirement v. Murgia,

ee kee et weeecees 18

Opini f the Justic

eS Be SE | rc 22

_—_—— a a

Reed v. Reed,

ee 16

. : ,

902 P.2d 896 (Colo. Ct. App. 1995) ........ 19

ee ‘

CE 21

Vv

118 N.M. 420, 882 P.2d 11 (1994) ......... 19

5 Sli

846 S.W.2d 262 (Tenn. 1993) ............ 15

Stillwell v. K City, Mi i; Board :

C ne of Police

872 F. Supp. 682 (W.D. Mo. 1995) ........ 27

v icati _

869 F. Supp. 442 (E.D. La. 1994) ......... 29

Sullivan v. Zebly,

ewe becue 11

TL.E.P. v. Leavitt,

840 F. Supp. 110 (D. Utah 1993) ....... 27, 29

vii

Townsend v. Swank,

Ce 24, 25

CE Ee 14

Ee 17

STATUTES OF THE UNITED STATES:

ee 2

Ne ccc cece 27, 29

ESS ee 2, 26

ct cee we csc ecces 2, 26

42 U.S.C. §§ 12101 et sea, ................ 27, 29

ee 28

EE 26

EE ee 28

cece App. M

STATUTES OF TENNESSEE:

Tenn. Code Ann. § 50-6-101 et seg, (Supp. 1995) .... 4

ats aati ee a

Tenn. Code Ann. § 50-6-207(3)(Supp. 1995) ........ 2

Tenn. Code Ann. § 50-6-208(Supp. 1995) .......... 5

Tenn. Code Ann. § 50-6-241 (Supp. 1995) ... 2, passim

Tenn. Code Ann. § 50-6-241(a)(1)(Supp. 1995) 2, passim

Tenn. Code Ann. § 50-6-241(b)(Supp. 1995) ...... a2

Tenn. Code Ann. § 50-6-241(c)(Supp. 1995)... 2, passim

Tenn. Code Ann. § 50-6-242 (Supp. 1995) . 2, 29 passim

STATUTES FROM OTHER STATES:

Tex. Labor Code § 401.001 et. seg. (Supp. 1994) .... 12

Ge RE ERD Co icwe eb ecccveneces 29

CONSTITUTIONAL PROVISIONS:

U.S. Const. amendment XIV,§ 1 .......... 3, passim

ek hee whee 21, 26

ed dna dec ieee eh ees 15

i ee oie db ees bee bis 6 5 60 0 es 15

RULES OF THE SUPREME COURT:

PCP EEE So Gbie gacccdosecsececs 2

CM ME cc nc ccceaccsecsseccecs 2

The Manual for Orthopedic Surgeons in Evaluating

Permanent Physical Impairment (American Academy

of Orthopedic Surgeons) .............. 8, 10

Pryor, om feet re.

The Report of the National Commission on State Workmen's

PTC PET EEUTED: ce cedscnccddulianas 10

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1995

ALICE SUE BROWN,

Petitioner,

Vv.

CAMPBELL COUNTY BOARD OF EDUCATION,

LARRY BRINTON, JR., DIRECTOR OF THE DIVISION

OF WORKERS’ COMPENSATION, TENNESSEE

DEPARTMENT OF LABOR, SECOND

INJURY FUND, STATE OF TENNESSEE, and

CHARLES BURSON, ATTORNEY GENERAL FOR THE

STATE OF TENNESSEE,

Respondents.

On Petition for Writ of Certiorari to the

Supreme Court of The State of Tennessee

PETITION FOR WRIT OF CERTIORARI

Petitioner Alice Sue Brown hereby petitions this Court

for a Writ of Certiorari to the Supreme Court of the State of

Tennessee.

OPINIONS BELOW

The Chancery Court of Campbell County, Tennessee

issued an Order and Judgment filed on October 24, 1994

(Appendix ["App.”] C); which found portions of the

Tennessee's Workers’ Compensation Act (“Act”), Tenn. Code

Ann. §§ 50-6-241(a)(1), 241(b), 241(c), 242 “to be arbitrary,

capricious, illegal, and unconstitutional because they violate

the Equal Protection Clause of the Fourteenth Amendment of

the United States Constitution.” The Tennessee Supreme

Court on appeal filed its Judgment (App. A), and Opinion

("Opinion”)(App. B), on December 28, 1995. The decision

disapproved the chancery court decision that the relevant

portions of the Act were unconstitutional, and rejected

Brown's argument that T.C.A. § 50-6-241 impermissibly

conflicted with the Americans with Disabilities Act of 1990,

42 U.S.C. § 701 et seg. or § 794 of the Rehabilitation Act of

1973, 42 U.S.C. § 710 et seg.

JURISDICTION

The Tennessee Supreme Court entered its Judgment

(App. A), and Opinion (App. B), reversing the judgment of

the Campbell County Chancery Court on December 28, 1995.

This petition is thus filed within the time allowed by law.

Supreme Court Rule 13.1, 13.4. Jurisdiction is invoked

pursuant to 28 U.S.C. § 1257(1).

ae

CONSTITUTIONAL AND STATUTORY PROVISIONS

The Equa! Protection Clause of the United States

Constitution, Amendment XIV, § 1, provides in relevant part:

No State shall . . . deny to any person within its jurisdiction

the equal protection of the laws.

Tenn. Code Ann. § 50-6-241(a)(1),(b),(c)(Supp. 1995) (App. D).

Tenn. Code Ann. § 50-6-242 (Supp. 1994) (App. J).

Title 42 U.S.C. § 12101(2) (App. K).

Title 42 U.S.C. § 12131(2) (App. L).

Title 42 U.S.C. § 12132 (App. M).

STATEMENT OF THE CASE

Brown, was employed by the Board of Education as

a cook (Amended Complaint in Civil Action No.: 13,417

(App. F ™} 5). While working at the Jellico Elementary

School (“School”), on October 6, 1992, Brown suffered

injuries to her neck, left shoulder, left arm and upper back

(id, 1 5). As a result of this injury, which arose out of and

in the course of her employment with the Board of Education,

Brown was rendered disabled to work and earn wages, as

well as incurring medical expenses (Id. {I 6).

Brown was injured again later that month upon her

return to work. While working as a cook, Brown suddenly

slipped and fell, suffering serious and disabling injuries to her

back, right hip, right leg, and other parts of her body”

(Amended Complaint in Civil Action No.: 13,418; App. E 7]

5). As a result of this injury, which also arose out of and in

the course of her employment with the Board of Education,

Brown was additionally rendered disabled to work and earn

wages, as well as incurring medical expenses (Id, I 6).

After these injuries, Brown was examined by Eugenio

F, Vargas, M.D; that gentleman, a neurosurgeon, found “disc

abnormalities” which did not require surgery (Opinion at 5;

App. B at 10). As a consequence, the supreme court found,

"Dr. Vargas found no objective indication that Brown had

suffered a permanent injury as a result of the October 1992

work incidents” (Id.).

Dr. Durham was certain that Brown's “severe and

chronic depression” (id. at 9), were aggravated by the two

accidents (Id.) As the supreme court noted, however, “Dr.

Durham could not provide a percentage of permanent mental

disability under the AMA Guides because the Guides provide

no such numerical percentages” (Id. at 9 to 10).

In addition, orthopedic surgeon William Kennedy

“assessed an anatomical impairment rating of 21% to the

whole body as a result of Brown's back and neck conditions”

(Id, at 8)(footnote omitted). According to Norman Hankins,

Ph.D., Brown's “vocational disability . . . is at least 95%” (Id.

at 10).

Brown filed two complaints in the Campbell County

Chancery Court. The first pleading, Civil Action No. 13,417

(App. H), was filed on August 23, 1993 with the Board of

Education as the named defendant. The complaint sought

benefits under the Tennessee Workers Compensation Law,

T.C.A. § 50-6-101 et seq., for neck and other injuries suffered

by Brown on October 6, 1992. The second pleading, Civil

Action No. 13,418 (App. G), was filed on August 24, 1993

with the Board of Education as the named defendant. This

complaint sought benefits for back and other injuries suffered

by Brown in late October 1992. In each case Brown sought

benefits from the Second Injury Fund, T.C.A. § 50-6-208, for

her injuries.

Brown subsequently filed amended complaints on

August 30, 1993 and October 13, 1993 respectively (App. F-

E), adding Larry Brinton, Director of the Division of

Workers’ Compensation, Tennessee Department of Labor, the

Second Injury Fund, the State of Tennessee, and Attorney

General Charles Burson, as additional parties defendant for

purposes of testing the constitutionality of the Tennessee

Worker's Compensation Reform Act (“Act”). These parties

will, as noted above, collectively be referred to as the “State.”

On December 6, 1993, the State moved for summary

judgment on the ground that the Act was constitutional.

The trial court, after a hearing, issued an Order and

Judgment (App. C), filed on October 24, 1994. The court

found portions of the Act, T.C.A. §§ 50-6-241(a)(1), 241(b),

241(c), 242 “to be arbitrary, capricious, illegal, and

unconstitutional because they violate the Equal Protection

Clause of the Fourteenth Amendment of the United States

Constitution and unfairly discriminate between workers whose

medical problems are recognized by the [AMA] Guides and

those whose problems are not, such as mental trauma and

chronic pain syndrome” (Order and Judgment {| 11 at 3).

See also Order and Judgment {| 14 (App. C at 43 to 45-46).

In addition, the court below also found that “T.C.A. Section

50-6-242 is discriminatory on its face because it clearly and

unequivocally discriminates in favor of uneducated workers

as compared with educated workers” (Id, 7 11; App. C at

45). The court also found that the legislation was “illegal and

unconstitutional because the statute also violates equal

protection of the Fourteenth Amendment of the United States

Constitution in that it provides workers who return to the

same employment with less disability than those workers who

do not return to the same employment” (App. C #] 13 at 46).

The Act was also found to be unconstitutional “because the

statute requires that the multipliers established by T.C.A.

Section 50-6-24l(a) and T.C.A. Section 50-6-241(b) are

maximum limits [and] the ratings in the [AMA] Guides have

nothing whatever to do with the inability to work” (Order and

Judgment [App. C 4 15 at 47).

The State thereafter perfected its appeal as to both

cases. The Board of Education did not appeal the Order and

Judgment below.

REASONS FOR GRANTING THE PETITION

1. This case presents a significant constitutional issue

regarding whether a recent amendment to Tennessee's

Workers' Compensation Law, affecting thousands of

employers and employees in that state, denies equal

protection to injured workers by discriminating between

workers whose medical problems are recognized by

American Medical Society Guides and those who problems

are not so recognized. The statute under consideration,

T.C.A. § 50-6-241, when “[rJeduced to its essentials .. .

establishes maximum permanent disability awards for

employees based on the medical impairment ‘rating and

multipliers selected by the [Tennessee] legislature” (Opinion

at 8-9; App. B. at 13 to 15). Brown objected to the

constitutionality of this scheme on the ground

that [statutory] use of the AMA Guides . . . violates

equal protection because (1) numerical percentage

ratings are not provided for certain medical

conditions, such as mental impairment or chronic

pain, (2) factors other than a physician's interpretation

of anatomical impairment are not considered in

determining vocational disability and, (3) the AMA

Guides themselves caution against their exclusive use

in fashioning awards of vocational disability.

(Opinion at 17; App. B. at 25).

A detailed examination of the statutory scheme

demonstrates the need for such review. T.C.A. § 50-6-241(a)

sets a maximum award of 2¥ times the “medical impairment

rating” if the employee returns to work with his pre-injury

employer at the same or greater wage. Absent such a return

to work, the maximum award is six times the “medical

impairment rating.” The important consideration is the means

by which this “medical impairment rating” is determined.'

' The 2%/6 multiplier is itself subject to attack on the ground that

there seems to be no rational basis for the choice of those two figures.

Under the statute, “the medical impairment rating [is]

determined pursuant to the provisions of the American

Medical Association Guides to the Evaluation of Permanent

Impairment.” T.C.A. § 50-6-241(a)(1).’

The best evidence that use of the AMA Guides is

arbitrary and capricious comes from the AMA_ Guides

themselves.’ The statute utilizes the AMA Guides to set

disability awards. See T.C.A. § 50-6-24i(a)(1). Yet the

AMA Guides themselves point out that “impairment,” which

is what the AMA Guides deal with, and “disability,” “which

is the subject of the Act,” are very different concepts:

[Whereas impairment is a medical matter, disability

arises out of the interaction between impairment and

external demands . . . Simply stated, “impairment” is

? Among the sources of “the medical impairment rating” are:

[T]he Manual for Orthopedic Surgeons in Evaluating Permanent

Physical Impairment (American Academy of Orthopedic Surgeons), or in

cases not covered by either of these, an impairment rating by any

appropriate method used and accepted by the medical community.

T.C.A, § 50-6-241(a)(1). Brown's emotional injury and her chronic pain

are items “not covered by either of these,” id., so that the catch-all phrase

is inapplicable here.

> There is no more compelling evidence that use of the Guides is

arbitrary and capricious than that of Brown's own personal circumstances.

She was emotionally injured to a severe degree and suffers from disabling

chronic pain, but application of the AMA Guides provided her with

benefits for those injuries of exactly zero.

what is wrong with the health of an individual;

“disability” is the gap between what the individual can

do and what the individual needs or wants to do.

An individual who is “impaired” is not necessarily

“disabled” . . . [I]f the individual is able to meet a

particular set of demands, the individual is not

“disabled” with respect to those demands, even though

a medical evaluation may reveal impairment . . . The

physician does not determine industrial loss of use or

economic loss for the purpose of paying a disability

benefit.

AMA Guides at 1-2 (emphasis in the original).

As a result, even the AMA Guides themselves

implicitly warn against the use to which they have been put

by the Tennessee legislature. And if this implicit warning

was not enough, tle warning was soon thereafter made utterly

explicit:

We encourage each system not to make a “one-to-

one” translation of impairment to disability, in essence

creating a use of the Guides which is not intended.

AMA Guides at 6 (emphasis supplied).

This conclusion of unconstitutionality with respect to

use of the AMA Guides in this case flows from a

consideration of the purpose of worker's compensation, which

was historically stated to be as follows:

10

The primary purpose of these benefits is to replace

some proportion of wage loss, actual or potential . . .

cash benefits should be closely tied to [the disabled

individual's] loss of income . . . Workmen's

compensation should replace a substantial proportion

of the worker's lost renumeration.

The Report of the National Commission on State Workmen's

Laws 33, 36-37 (1972). But the vice of the Act is that it

attempts to make “scientific” and a matter of mere formula

that which is simply not amenable to such treatment. A

reasonable reading of the statute entails that these factors are

to be considered only if neither the Guides nor the

Orthopedic Manual governs the particular injury. See Tenn.

Code Ann. § 50-6-241(a)(1). Of course, the supreme court

asserts a construction of the Act under which these additional

considerations are to be considered in all determinations but

where the use of the AMA Guides simply provides the

maximum figure for a permanent partial disability award

(App. C. at 45). Even if this reading were correct, the statute

is hardly saved from unconstitutionality as a result. To argue

that the use of traditional (and constitutional) factors to fix

benefits in less than the maximum amount, coupled with a

parallel (but unconstitutional) employment of the AMA

Guides to fix the maximum award, somehow cures the

arbitrary and capricious nature of the statute is to tum

accepted standards of constitutional and statutory analysis on

their heads. As a scholarly criticism of such attempts points

out:

Policy makers should appreciate that the search for an

“objective,” “accurate,” or purely “medical” system is

11

and always will be fruitless. And they must resist the

seductive but false hope that use of a scientifically or

medically authored ratings systems can bypass the

need to make the hard choices necessary for any loss

assessment.

Book Y eae of fae — =, gy pene OR

Guides tthe Es 976 ion-of Penman pee

But one need not resort to law reviews to find

compelling criticism of such compensation schemes. This

Court itself disapproved HHS regulations that would have

linked child disability entitlement to a list of impairments:

No decision process restricted to comparing claimants’

medical evidence to a fixed, finite set of medical

criteria can respond adequately to the infinite variety

of medical conditions and combinations thereof, the

varying impact of such conditions due to the

claimants’ individual characteristics, and the constant

evolution of medical diagnostic techniques.

Sullivan v. Zebly, 493 U.S. 521, 539 (1990). The use of the

AMA Guides pursuant to the Act partakes of precisely the

same vice. Worker's compensation systems were designed as

a sort of trade-off; workers lost their right to sue their

employers at common law for their work-related injuries in

exchange for a statutory scheme under which they would

receive at least partial compensation for losses of earning

capacity suffered as a result of such injuries. The difficulty

12

is that the Act under examination fails in this task; it offers

compensation on the basis of impairment rather than on the

more logical grounds of lost earning capacity, lost income, or

actual disability. As the chancery court pointed out, a system

that is so tenuously related to a worker's actual lost earning

capacity or actual ability to gain employment is “arbitrary,

capricious, [and] irrational” (Order at 5; App. C at 47). Such

a system is arbitrary and capricious and should be declared

unconstitutional by this Court by way of granting the Writ of

Certiorari here being sought.‘

Brown acknowledges the general validity of her

supreme court's philosophy that if a particular distinction “is

rationally related to a legitimate state objective, the legislation

should be held to be constitutional.” Civil Service Merit

Board _v. Burson, 816 S.W.2d 725, 734 (Tenn. 1991).

Precisely the same principle obtdins in this Court. Hooper vy.

Bernalillo County Assessor, 472 U.S. 612, 618 (1985)

(“Generally, a law will survive [equal protection] scrutiny if

the distinction rationally furthers a legitimate state interest”).

* Even those decisions from other states that have approved workers’

compensation schemes that utilize the AMA Guides to some extent or in

various ways have not gone so far as the State in this regard. The Texas

Supreme Court, for example, upheld the constitutionality of its Workers’

Compensation Act of 1989, Tex. Labor Code § 401.001 et. seg. (Supp.

1994), an enactment which shares some features of the leisnton before

this Court, in Texas rk S: nt si

S.W.2d 504 (Tex. 1995). Bur tho Tecan coutt Giaieuliy @hd bet beach he

equal protection question actually before this Court. Instead, “[w]e

express no opinion as to whether the Act might violate due course of law

as applied to a claimant suffering from a permanent physical ailment that

is not rated under the [AMA] Guides.” Id, at 526.

13

The state supreme court simply went through the

analytic motions in reversing the chancery court so as to find

the statutory scheme to comport with the demands of equal

protection. It did so by invoking a number of black-letter

principles of law disfavoring judicial findings of

unconstitutionality. It noted the well-established rule that a

statute is entitled to a strong presumption favoring its

constitutionality. It observed that any doubt should be

resolved in favor of the constitutionality of a statute. It

suggested that a court has an obligation to uphold the

constitutionality of a statute if there exists any reasonable

construction which would satisfy the requirements of the

Constitution. Moreover, it placed the burden upon the party

attacking the statute to show its unconstitutionality (App. B.

at 31 to 32). No one could possibly contest the abstract truth

of these principles. But their invocation in the present

context does little more than beg the question in issue. The

issue before the Court is whether, in fact, application of these

principles can save the constitutionality of the statutes under

examination. Brown contends that they cannot.

Under the rational basis test, according to the state

supreme court, there are “no bright-line rules for determining

reasonableness” (Opinion at 14; App. B. at 22). But the

reasons that court does usher forth in support of the statute

simply fail to bear sustained scrutiny. For example, the court

argues that use of the AMA Guides actually reduces unequal

protection in that “[t]he multipliers substantially reduce the

possibility of similarly situated workers with like injuries and

anatomical disability ratings receiving vastly different awards”

(Id, at 16; id, at 24).

14

But no such rational relationship has or can be shown

in fact. There is simply no compelling or even rational

reason why the legislature had to discriminate against workers

suffering non-AMA Guide covered injuries in pursuit of the

principle that “[rjeasonably (sic) uniformity in statutory

awards is a legitimate state interest” (id.; id.). See, e.g.,

Eisenstadt_v. Baird, 405 U.S. 438, 447 n. 7 (1972)("the

statutory classification would have to be . . . rationally related

to a valid public purpose”) (emphasis by the Court);

Tennessee Small School Systems v. McWherter, 851 S.W.2d

139, 153 (Tenn. 1993)(rational basis test asks “whether the

classifications have a reasonable relationship to a legitimate

state interest”). Nor is it possible to determine what

“legitimate state interest,” id., is served by its so doing, and

certainly the State has shown itself unable to articulate any

such interest. There is nothing so magical about the AMA

Guides that requires their statutory incorporation even in the

face of blatant discrimination against workers unfortunate

enough to suffer injuries not explicitly covered by new

statute. In short, the Court should, for purposes of assessing

this Petition, be guided in its examination of the purported

rationale for the statutory use of the AMA Guides by the rule

that “the mere recitation of a benign, compensatory purpose

is not an automatic shield,” Weinberger v. Wiesenfeld, 420

U.S. 636, 648 (1975), against a searching equal protection

analysis of the Tennessee statute.

The supreme court goes on in this connection to make

a generalized plea that the legislature be allowed to have its

way with this classification. Just a little discrimination never

hurt anyone, it seems to say; and even if it actually does hurt

its targets a little, such pain is unobjectionable because

15

“{e]qual protection does not require absolute equality”

(Opinion at 13; App. B. at 21). The State then asserts, by

coincidently echoing the familiar rule of Dandridge v.

Williams, 397 U.S. 471 (1970), that “[e]qual protection does

not... mandate that everyone receive the same advantages”

(Opinion at 13-14; App. B. at 21). Brown by no means

demands “absolute equality” (Id, at 13; id.). Nor does she

demand that “everyone receive the same advantages” (Id, at

13-14; id.). What Brown does request of this Court is an

appellate recognition by way of a grant of the Writ sought in

this Petition that this discrimination does in fact offend the

Constitution.

As the discussion both above and below demonstrates,

this statutory scheme has many constitutional vices. Chief

among them, and the primary reason why it cannot withstand

appellate analysis and thus deserves scrutiny by this Court, is

the fact that workers whose injuries include, for example,

emotional or mental disabilities, or who suffer from chronic

pain syndrome, are much less likely to receive just awards

than their fellow workers whose injuries are recognized by

the AMA Guides. As the chancery court noted:

This lady has afm AMA Guides] level four, and if I

can remember way back a level four carried a

percentage of like thirty or forty percent under the old

law. And we're sitting here with a lady who is -

diagnosed, as I recall, with a level four injury and you

can’t use any multiplier on it. I certainly think that is

discrimination against a person with a psychological

injury.

16

(Memorandum of Opinion at 4; App. D at 60 to 61). Such

a blatant discrimination, which serves no legitimate or even

discoverable state interest, is an impermissible denial of equal

protection under both state, see State v. Sliger, 846 S.W.2d

262, 264 (Tenn. 1993)°, and federal constitutional standards.

Reed _v. Reed, 404 U.S. 71, 75-76 (1971). This

discrimination is deserving of review by this Court because

of the thousands of employees and employers in Tennessee

and other states with similar statutory schemes who are

affected by the potential application of this statutory scheme.

The supreme court made much of the fact that, in

theory at least, the AMA “caps are not absolute and do not

apply in every case [but that t]rial courts have the discretion

to exceed the caps in cases where the disabled faces the

substantial vocational obstacles specifically set out in

Tennessee Code Annotated Section 50-7-242” (Opinion at 16;

App. B. at 24) (footnote omitted). It emphasizes as well the

fact that the non-covered injuries can be compensated outside

the operation of the AMA Guides. “When the injury in

question is not covered by the Guides,” the supreme court

argued, “the rating is to be based on any ‘appropriate method

* The Opinion notes that “[bJoth the United States and Tennessee

Constitutions guarantee to citizens the equal protection of the laws”

(Opinion at 10; App. B. at A-17). Tennessee Const., art. I, § 8 (the “law

of the land” clause), and art. XI, § 8 (the “general laws” provision) “have

consistently [been] held [to] confer the same protection as does the

Fourteenth Amendment to the United States Constitution” (Opinion at 11;

App. B. at A-18). The discussion of the appropriate “standards of

scrutiny” (id. at 11-12; id.), to be applied to this case, therefore, will

assume that the Tennessee Supreme Court applied the same standard as

would this Court under the Equal Protection Clause.

17

used and accepted by the medical community” (Id, at 19-20;

id, at 29, quoting T.C.A. § 50-6-241(a)(1),(b)).

The fact that, by way of a vague and open-ended

statutory afterthought, the legislature provided for such non-

covered injuries to be accorded “an impairment rating by any

appropriate method used and accepted by the medical

community,” T.C.A. § 50-6-241(a)(1), by no means saves the

statute. That one class of workers has the advantage of the

tightly-organized and precise AMA Guides to define their

impairments while the excluded class must search out some

sort of cobbled-together ad hoc system to obtain benefits for

their injuries, demonstrates the inequity of the impermissible

inequality of protection afforded to these two classes of

injured workers by the statute.

The fact, in other words, that the Tennessee statute

provides an alternative in those cases where the AMA Guides

do not apply fails, however, to suggest that T.C.A. § 50-6-

241(a)(1) passes that “rational basis” test demanded by cases

like Zobel v. Williams, 457 U.S. 55 (1982). The alternative

that exists in § 50-6-241(a)(1) for cases not covered by the

AMA Guides is simply not up to the task demanded of it;

even the supreme court is implicitly forced to admit the

difficulties inherent in totaling up part of an impairment

under the AMA Guides and the rest of the impairment by

other means (Opinion at 17; App. B at 25) ("Plaintiffs’

assertions about the Guides are largely accurate. The Guides

do not provide percentage ratings for some physical and

mental impairments”). The problem with this State's

acknowledgement in this regard is not that it is wrong, but

that it does not go far enough.

18

Precisely the same rebuttal applies to the State’s

suggestion that use of the AMA Guides is not fatal because

"the Guides are not the sole determining factor in setting an

award of vocational disability” (Opinion at 20; App. B. at

29). When, however, the method for fixing physical

disabilities can be easily divined from the AMA Guides but

emotional injury and chronic pain must receive compensation,

if at all, through application of an informal, ad hoc

methodology, the claimant is unlikely indeed to receive just

compensation for those injuries not covered by the AMA

Guides. Indeed, the chancery court judge himself was

frustrated by his inability under the statute to provide

anything close to a fair award (Order at 4; App. C at 44).

The AMA Guides represent a substantial amount of research

by myriad physicians and researchers to quantify physical

injuries. To ask a single practitioner to develop equally valid

Statistics for emotional injuries and chronic pain for a single

patient is an unfair and unrealistic request that could not very

likely be either accurately or satisfactorily accomplished by

even the most expert and well-meaning of physicians. It

follows that the inadequacies of the Tennessee statutory

scheme is itself a denial of equal protection notwithstanding

the legislature’s off-hand and hopelessly general attempt to

provide a statutory alternative to infirmities not covered by

the AMA Guides.

The supreme court generally seeks to justify its mode

of analysis by opting for what it calls “the reduced scrutiny

test” (Opinion at 13; App. B at 20). Even if the the

constitutionality of using AMA Guides in the manner

contemplated in the statute is entitled to no more than this

analysis, see. e.g., Massachusetts Board of Retirement v.

19

Murgia, 427 U.S. 307 (1976), one notes that the supreme

court seeks to apply an even less stringent test. It seems to

assume that a court should apply these rules agains: a finding

of unconstitutionality with particular tenacity in the case of

workers’ compensation legislation. “This Court,” the supreme

court observes by way of citing five cases, “has upheld

various provisions of Tennessee's workers’ compensation

scheme against constitutional challenges” (Opinion at 23 n. 9;

App. B at 32 n. 9) (citations omitted).

Yet there seems little reason to insulate the statute

from the searching inquiry to which legislation generally is

justly subjected. In fact numerous courts in other states have

recently found workers’ compensation law to be

unconstitutional on equal protection grounds. There is no

apparent reason why Tennessee’s Act should prove an

exception to this rule. The recent Tennessee enactment is

unconstitutional in all the respects urged by Brown in her

complaints and found by the chancery judge in his Order and

Judgment. Given the importance of this issue to thousands of

Tennessee workers at a minimum, this Court is respectfully

asked to grant Brown’s Petition for a Writ of Certiorari.

2. This case also presents a significant issue

regarding whether recent amendments to Tennessee's

Workers' Compensation Law, which affect thousands of

employers and employees in that state, deny equal

(Colo. Ct. App. 1995): v. W. tion

822 P.2d 922, 929 (Alaska 1994); Schrimer v. Homestake Mining Co.,

118 N.M. 420, 882 P.2d 11, 14 (1994), for a few recent examples.

20

protection to injured workers by discriminating between

educated and uneducated workers. The Tennessee supreme

court improperly found that T.C.A. § 50-6-242 was equally

capable of passing constitutional muster. What this statutory

scheme means in practice is that an uneducated or poorly

educated worker suffering a mental disability who suffers

serious permanent disability can receive benefits for a

maximum of four hundred weeks. On the other hand, a

particular worker who has at least an eighth-grade education,

transferable skills, and a serious mental disability, would

receive no disability benefits at all because he could not

satisfy the criteria set out in T.C.A. 50-6-242(1)-(4).

This portion of the legislation discriminates heavily in

favor of un- or under-educated workers with serious mental

problems and concomitantly denies equal protection to

educated workers like Brown with serious mental problems.

The chancery court below correctly found the scheme to be

facially unconstitutional:

As the statutory scheme is structured under Act, a

mentally injured worker with college training but

seriously and mentally impaired could in the end

receive no benefits at all as compared with his more

fortunate counterparts who suffered mental injuries

and were uneducated. The result is that T.C.A.

Section 50-6-242 impermissibly discriminates on the

basis of eduction against workers who sustain serious

disability from mental impairments.

(Order 9 11 at 4; App. C at 45). The supreme court

defended T.C.A. § 50-6-242 on the ground that the distinction

21

made between educated and uneducated workers under the

Act “is based on a reasonable difference” (Opinion at 21;

App. B. at 31). In the eyes of that court, “older or less

educated workers . . . may have a higher vocational disability

sO as to warrant a higher workers’ compensation award” (Id.;

id,). As a result, the court concludes, “there is a rational basis

for the distinction” (Id.; id.).

It is by no means obvious that such a rational basis

exists. The State neither offered, nor did the supreme court

cite, any evidence whatever to support this theory. Brown

also urges that the distinction in the statute between educated

and uneducated workers, in the words of local constitutional

jurisprudence, “should be subject to strict scrutiny [because]

it impermissibly interferes with the exercise of a fundamental

right (e.g., voting, intestate travel) or operates to the peculiar

disadvantage of a suspect class (e.g. alienage, race).”

Harrison vy, Schrader, 569 S.W.2d 822, 825 (Tenn. 1978). See

Clements v. Fashing, 457 U.S. 957, 963 (1982) ("We have

departed from traditional equal protection principles only

when the challenged statute places burdens upon ‘suspect

class” of persons or on a constitutional right that is deemed

to be ‘fundamental”)(Opinion of Rehnquist, J.).

Brown does not contend that educated workers are

necessarily members of a “suspect class.” Id. However, it is

altogether possible that some level of education is a

fundamental right, the pursuit of which would be unduly

hindered by the legislation before this Court. Compare San

Antonio School District v. Rodriguez, 411 U.S. 1, 35 (1973)

("education, of course, is not among the rights afforded

explicit protection under our Federal Constitution. Nor do we

22

find any basis for saying it is implicitly so protected”) with

id, at 36 (Court might grant “that some identifiable quantum

of education is a constitutionally protected prerequisite to the

meaningful exercise of [the] right [to speak and to vote]”).

Thus, even if education is not a fundamental right under the

U.S. Constitution, it does seem to occupy a place in the

pantheon of rights that places it above those entitlements

entitled to the relaxed scrutiny of the rational basis test. Cf,

Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 441

(1985)(positing “somewhat heightened review" of

discriminations made on account of illegitimacy”).

In fact, however, education is in Tennessee a

fundamental right even if it is not so characterized under the

federal constitution. Tenn. Const. art. 11, § 12 (1980 Repl.

Vol.), declares that the “[t]he State of Tennessee recognizes

the inherent value of education and encourages its support.”

Similar state constitutional provisions have been held to make

education a fundamental right as a result. See Tennessee

Small School Systems v. McWherter, 851 S.W.2d 139, 148-

50 (Tenn. 1993)(collecting cases). See also Opinion of the

Justices, 624 So.2d 107, 157 (Ala. 1993), which collects such

cases and declares that “[g]iven the history and text of

Alabama’s education article, the Court determines that the

right to education in Alabama is fundamental|[.]”’

" Brown recognizes that the interpretation of the Tennessee

Constitution is fundamentally a task for Tennessee courts. A state's

constitution is binding on its legislature, however. Groves v. Singleton,

20 U.S. (15 Pet.) 449, 502-03 (1841). If education is a fundamental right

umler the Tennessee constitution, then the legislature's failure to honor

that right in enacting workers’ compensation legislation is itself a violation

of equal protection for which review in this Court is proper.

23

The supreme court in McWherier noted that it

traditionally applies either reduced, heightened, or strict levels

of scrutiny in assessing equal protection claims. Tennessee

Small School Systems v. McWherter, supra, 851 S.W.2d at

153. The court did not find it necessary to determine into

which category education fell because it agreed with the

finding that “[iJn the case before the Court, the Chancellor

found the public school system to be constitutionally invalid

under all three levels of scrutiny.” Id, Because the funding

system failed even the “rational basis’ test . . . the plaintiffs

will be found to prevail and further analysis will not be

necessary.” Id,

In this case Brown urges that T.C.A. § 50-6-242

similarly flunks all three scrutiny standards, reduced,

heightened, and strict. See, ¢.g., Opinion of the Justices,

supra, 624 So.2d at 160 (“Indeed, the Court cannot conclude

that the differential treatment at issue here is rationally related

to a legitimate state interest under the least searching tier of

equal protection analysis, the rationality standard”). But

because the statute clearly penalizes workers with higher

educational attainments, Brown urges that application of

either the heightened or strict scrutiny standard is appropriate,

with a finding that equal protection has been violated as a

result. The structure of T.C.A. § 50-6-242 is invalid because

(a) it impermissibly and unreasonably discriminates against

more educated workers with mental disabilities; and (b) offers

a reward to workers for not attaining a minimal education

level, thereby violating the constitutional duty binding the

legislature to effectuate “the inherent value of education and

encourage[] its support[.]” Tenn. Const. art. 11, § 12.

24

Most of the litigation in this area involves the right to

an education rather than distinctions made on the basis of

educational attainment. The paucity of cases involving

discrimination of the sort in issue here is itself an indication

of just how constitutionally far-fetched the structure of T.C.A.

§ 50-6-242 really is. Those few decisions that have analyzed

distinctions more or less like those in issue here have doubted

that they could withstand constitutional attack.

a Supp. ee iil

404 U. S. 282 (1971), for example, the two courts siodicnting

the case examined an Illinois statute and regulation that

provided for Aid to Families with Dependant Children

("AFDC") benefits to children between ages 18 to 21 who

were attending high school but denied similar benefits to

children in college. The three-judge lower court applied the

rational basis test and found “a rational connection between

these legislative objectives and the classifications[.]” 314 F.

Supp. at 1089." This Court reversed the decision below on

* As concurring judge Abraham Lincoln Marovitz noted:

In my view, however, a serious difficulty arises when the statutory

discrimination operates at the post-high school level. The state has

asserted that persons enrolled in vocational training programs are

intellectually inferior to those in college, but there is no documentation

before us to indicate that such is uniformally (sic) or even generally true.

314 F. Supp. at 1090. This is the vice of T.C.A. § 50-6-242. The State

has made a judgment that uneducated workers require benefits to which

mentally disabled workers need not be given. Yet there is no showing

that this supposition is valid or factually supportable, let alone that it

25

supremacy clause grounds; it therefore did not need to make

an equal protection finding. Nonetheless, the Court

undertook such an analysis and in the process cast grave

doubt on the constitutionality of distinctions based on

educational levels:

[W]e think there is a serious question whether the

Illinois classification can withstand the strictures of

the Equal Protection Clause. The majority [on the

three-judge panel] justified the classification as

designed to attain the twin goals of aiding needy

children to become employable and self-sufficient, and

of insuring fiscal integrity of the State’s welfare

program. We doubt the rationality of the

classification as a means of furthering the goal of

aiding needy children to become employable and self-

sufficient; we are not told what basis in practical

experience supports the proposition that children with

a vocational training are more readily employable than

children with a college education. And a State's

interest in preserving the fiscal integrity of its welfare

program by economically allocating limited AFDC

resources may not be protected by the device of

adopting eligibility requirements restricting the class

of children made eligible by federal standards.

404 U.S. at 291. Thus, even applying the rational basis test,

the Court doubted the rationality of the classifications.

T.C.A. § 50-6-242 is subject to the same analysis—and result.

In addition, when one factors in the possibility that this

26

particular statute may require the application of heightened

scrutiny on account of Tenn. Const. Art 11, § 12, the

constitutional infirmity of the statute upon equal protection

grounds is established almost beyond any reasonable doubt.

This result is strengthened by the holding in French v.

Heyne, 547 F.2d 994, 999 (7th Cir. 1976), which sustained a

complaint seeking to strike down on equal protection grounds

a practice that denied vocational or educational programs to

reformatory inmates who already possessed vocational or high

school degrees. The court denied

that a rational basis for the classification . . . is

apparent on the face of the classification itself. In the

absence of an articulated purpose for the distinction

drawn here, we cannot indulge in supplying an

imaginary purpose or basis for the classification[.]

The Tennessee legislature has similarly failed to provide a

rational (or heightened) basis for the distinctions in T.C.A. §

50-6-242. Thus, even if this distinction is to be judged by

the rational basis test, the discrimination against educated,

mentally disabled workers flunks the constitutional test

notwithstanding. A grant of Writ here sought is appropriate.

3. This case presents an important Supremacy

Clause issue regarding whether Tennessee Code

Annotated § 50-6-241 impermissibly conflicts with the

Americans with Disabilities Act of 1990, 42 U.S.C. § 701

et seg. or Section 794 of the Rehabilitation Act of 1973, 29

U.S.C. § 710 et seq. T.C.A. § 50-6-241(a)(1) should be

struck down by this Court not only because it is

27

unconstitutional but in addition because it is hopelessly in

conflict with federal statute law in the form of both the

Americans with Disabilities Act (“ADA”), 42 U.S.C. §§

12101 et seq., and Section 504 of the Rehabilitation Act of

1973, 29 U.S.C. § 794. As such the statute cannot stand

because “[uJnder Article VI of the United States Constitution,

federal law takes precedence over conflicting state law.”

T.E.P. v. Leavitt, 840 F. Supp. 110, 111 (D. Utah 1993).

It has been held that “[t]he ADA is intended to insure

that qualified individuals receive services in a manner

consistent with basic human dignity rather than a manner

which shunts them aside, hides, and ignores them.” Helen L.

y. DiDario, 46 F.3d 325, 335 (3rd Cir. 1995)(footnote

omitted). The fact that the statute in issue “discriminates

between workers whose medical problems are recognized by

the [AMA] Guides and those whose problems are not, such

as mental trauma and chronic pain syndrome” (Order at 2;

App. C at 45), reveals that T.C.A. § 50-6-241(a)(1) is fatally

inconsistent with that goal. Moreover, the statute is also

wholly at odds with the specifics of this federal legislation.

In broad terms, the ADA proscribes discrimination on

account of a disability. 42 U.S.C. § 12132. The State is

subject to these strictures because “[t]he term ‘public entity’

means--(A) any ae or local er J" 42 Use §

12131(1). See S Z sou!

Puttin Cusemiadaniee 872 F. See. 682, 686-87 (W. D. Mo.

1995)(“across-the-board-exclusion on all one-handed

applicants” by city police board violates ADA). Workers

subject to T.C.A. § 50-6-241(a)(1) are entitled to invoke the

28

ADA because many of them are by definition “qualified

individual(s] with a disability” under 42 U.S.C. § 12131(2).

Nor can there be any doubt that individuals suffering

from “mental trauma and chronic pain syndrome” (Order at

2; App. C at 45), that is, those individuals whose medical

problems are not recognized by the AMA Guides, are

squarely within the coverage of the ADA.*® The term

“disability” as defined in 42 U.S.C. § 12101(2), clearly

encompasses such individuals.

Certainly, it is clear as matters of simple definition

and logic that individuals entitled to coverage pursuant to the

Tennessee workers’ compensation statute are encompassed

under this definition by dint of the very fact that they are

impaired emotionally or mentally to the extent that they are

forced to seek an award under the statute. Cf, Clark v.

Virginia Board of Bar Examiners, 861 F. Supp. 512, 517

(E.D. Va. 1994), which employed the very term “impairment”

in concluding that the test as to whether an individual was

covered by the ADA depended upon whether the

“impairment” placed significant limitations on his ability to

“perform any major life activity.” In addition, the ADA is

implicated in this Petition because it follows that both

physical and mental impairments are disabilities under the

* Because the distinction in T.C.A. § 50-5-241(a)(1) between

individuals whose impairments are recognized by the AMA Guides and

those whose maladies are not so recognized, does not follow a “bright line

rule” (Opinion at 14; App. B. at 22), i.e., a definitional line between those

who are covered by the ADA and those who are not, the statute as a

whole violates the federal statute.

29

ADA. Stradley v. Lafourche Communications, Inc., 869 F.

Supp. 442, 443 (E.D. La. 1994).

That the violation of the ADA in this case is the

enactment of a statute rather than more informal (or

discretionary) governmental action is no bar whatever to a

finding that T.C.A. § 50-6-241(a)(1) violates the ADA. In

T.E.P. _v. Leavitt, supra, for example, the governmental

violation of the ADA consisted in fact of the legislative

enactment of a statute, Utah Code Ann. § 30-1-2(1)(1993

Supp.), legislation “which prohibits and declares void

marriage by persons with acquired immune deficiency

syndrome (AIDS)[.]” 840 F. Supp. at 111. The statute was

held to be “violative of the Americans with Disabilities Act,

42 U.S.C. § 12101 et Seq, (ADA) (1993 Supp.), and the

Rehabilitation Act of 1973 of 1973, as amended, 29 U.S.C.

§ 794 (1993 Supp.).” Id,° The same is true here; hence, the

statute must be disapproved for its violation of these two

enactments. As a result T.C.A. § 50-6-241(a)(1) is illicit on

both constitutional and statutory grounds."

” Tilegality under the ADA presumes the illegality of § 50-6-24 1(a)(1)

under the Rehabilitation Act of 1973 as well, for “[t]he law developed

under section 504 of the Rehabilitation Act is applicable to Title II of the

ADA.” Helen L. v. DiDario, supra, 46 F.3d at 330 n.7.

"' Application of the holding in T.E.P. v. Leavitt, supra, would

actually make resort to a constitutional analysis unnecessary; “because the

offending statute runs afoul of federal statutory law, there is no need to

determine whether the statute is unconstitutional under either the Utah

State Constitution or the United States Constitution.” Id. at 111.

30

The supreme court's treatment of this issue was both

cursory and unconvincing; it merely recycled the argument

used to dispatch Brown's equal protection argument to

counter her Supremacy Clause allegation (Opinion at 25;

App. B. at 36). The supreme court’s argument was

unconvincing in the equal protection context; it is equally

unconvincing here. Accordingly, Brown asks that her

Petition for a Writ of Certiorari be granted on this ground as

well.

LUSION

Therefore, Petitioner respectfully requests that this

Court issue a writ of Certiorari to the Supreme Court of the

State of Tennessee.

Respectfully Submitted,

ALICE SUE BROWN

David H. Dunaway* David Hart Nelson

DAVID H. DUNAWAY 1504 Dairy Road

& ASSOCIATES Charlottesville, VA 22903

100 South Fifth Street (804) 293-5750

Post Office Box 231

LaFollette, TN 37766

(423)

*Counsel of Record

Attomeys for Petitioner

March , 1996