Summary by: Jared Renfroe
The Tennessee Bureau of Workers’ Compensation Appeals Board decided on a very significant case on February 6, 2018, titled Christopher Batey v. Deliver This. It was heard by the Appeals Board upon both parties’ appeal of the decision of the Honorable Thomas Wyatt, Judge with the Tennessee Court of Workers’ Compensation Claims, and is significant in many respects, including the fact that it was a case of first impression in Tennessee.
Before diving into the details and analysis of the case, I want to provide the reader with a brief overview of how injured workers in Tennessee are compensated for permanent injuries sustained during workplace accidents.
Tennessee’s Workers’ Compensation Law provides an injured worker permanent disability benefits if he or she retains a permanent impairment as a result of an injury that arose primarily out of and in the course and scope of employment. Permanent benefits include, at a minimum, permanent partial disability (“PPD”) benefits calculated by multiplying the impairment rating assigned by the treating physician by 450 and then multiplying this product by the workers’ compensation rate. This figure is commonly referred to as the “initial award” or “original award.” For example, a 2% impairment rating would result in an initial award of 9 weeks of benefits (0.02 x 450 = 9 weeks).
In some cases, though, an injured worker may be entitled to increased benefits over and above the initial award. One such way for an injured worker to obtain more PPD benefits is through a mechanism codified at Tenn. Code Ann. § 50-6-207(3)(B), which can apply if the injured worker has not returned to work for any employer at the same or greater rate of pay as before the work injury at the end of the initial compensation period. This initial compensation period is simply the number of weeks represented by the initial award.
In the example above, with a 2% rating, the initial compensation period would expire 9 weeks after the employee had reached maximum medical improvement or MMI. If this statute applies, the injured worker would be entitled to an increased benefit of 1.35 times the initial award, with a credit given to the employer for payment of the initial award. Additionally, the employee could be entitled to further increased benefits using the following modifiers:
• 45x – If the employee lacks a high school diploma or GED;
• 2x – If the employee is over the age of 40 at the time the initial compensation expires;
• 3x – If the unemployment rate in the employee’s Tennessee county of employment is at least 2 percentage points higher than the State’s unemployment rate at the expiration of the initial compensation period.
The purpose of providing increased benefits is to better compensate those injured workers who are competing in the marketplace for jobs against other candidates who may not be injured.
Lastly, some injured workers in Tennessee may qualify for even greater benefits due to a special statute found in the Workers’ Compensation Law – specifically, Tenn. Code Ann. § 50-6-242. It provides that in “extraordinary cases” in which the injured worker is entitled to increased benefits according to Tenn. Code Ann. § 50-6-207(3)(B) discussed above, the employee may be entitled to up to 275 weeks of benefits multiplied by his or her compensation rate instead of being awarded the increased benefits.
This is essentially equivalent to receiving an impairment rating of 61% to the body. However, these benefits are not automatically awarded, and until the recent Batey v. Deliver This, Inc. case, there were many questions among practitioners as to how exactly the statute would be applied. For the Court to award such benefits to an injured worker, several elements must be met, including the:
• Trial judge must determine by clear and convincing evidence that limiting the employee’s award to the increased benefits in § 50-6-207(3)(B) would be inequitable in light of the totality of the circumstances;
• Injured worker has been assigned a permanent impairment rating of 10% or more to the body under the AMA Guides by the authorized treating physician selected from a panel of physicians;
• Authorized treating physician has certified on a “Physician Certification Form” published by the Bureau of Workers’ Compensation that due to the permanent restrictions on activity, the employee “no longer can perform the employee’s pre-injury occupation”; and the
• Employee is not earning an average weekly wage or salary that is equal to or greater than 70% of the pre-injury average weekly wage or salary.
Importantly, only the first requirement must be proven with clear and convincing evidence according to the Court in Batey; the remaining requirements may be proved by a preponderance of the evidence, a much lesser burden for the injured worker.
Until the Batey decision, injured workers, employers, adjusters, and attorneys were left to parse through this statute to determine the potential applicability of the provisions. However, in Batey, the Appeals Board directly addressed this statute and provided much-needed clarification concerning several of the terms.
• First of all, about the requirement that the judge finds by clear and convincing evidence that limiting the PPD award to the § 50-6-207(3)(B) increased benefits would be inequitable, Judge Wyatt highlighted that both parties had retained vocational experts to testify, and limiting the employee’s award to the increased benefits would fall significantly short of the disability ratings provided by both competing experts. The Appeals Board agreed.
• Secondly, the Court noted that generally, the second and fourth requirements set forth above will be easy to prove at trial – either the authorized treating physician assigned a permanent impairment rating of 10% or more or he or she did not, and either the employee is working earning an average weekly wage or salary that is greater than or equal to 70% of his or her pre-injury average weekly wage or salary, or he or she is not.
The “critical issue” is whether the authorized physician has certified that the injured worker “no longer can perform the employee’s pre-injury occupation.” Importantly, the physician’s opinion on the “Physician Certification Form” is entitled to a statutory presumption of correctness which may only be rebutted by contrary clear, and convincing evidence that the employee can perform his or her pre-injury occupation, a much higher burden for the employer.
The phrase “pre-injury occupation” is not defined in the statute, so the employee In Batey argued that the statute meant that if he could not return to the job he held at the time of the injury, this requirement was met. However, the Appeals Board considered the plain and ordinary meaning of the phrase and held that the word “occupation” includes more than a specific job and rather describes the type of work one does as his “usual or principal work.”
Moreover, the Board noted that it would be inconsistent to apply such a narrow interpretation to the phrase as used in § 50-6-242 to award benefits when an employee would be disqualified from receiving increased benefits under § 50-6-207(3)(B) if he or she was able to return to any employer at an equal or greater rate of pay. Ultimately, the outcome of the Batey case was that the employee was awarded 275 weeks of benefits because all of the necessary elements were met, even with the less restrictive interpretation of “pre-injury occupation.”
It remains to be seen how some other aspects of the statute will be applied. For example, the statute provides that the Court may award up to 275 weeks of benefits, but there is no requirement that 275 weeks of benefits are mandatory, leaving the ultimate issue up to the discretion of the trial judge to award 275 weeks or some lesser figure. This issue will surely come up in another case in the future, and it will be interesting to see how it plays out.
The goal of this article was to provide insight and clarification on a very interesting and rarely-utilized statute available under Tennessee’s Workers’ Compensation Law. Tennessee’s Bureau of Workers’ Compensation Appeals Board did an excellent job of examining all of the issues and providing clear guidance on how these issues should be addressed in the future. I would recommend that you read the full opinion, which can be found here.
Jared S. Renfroe is an attorney in Spicer Rudstrom, PLLC’s Memphis office. His practice focuses on workers’ compensation defense and labor and employment litigation across Tennessee. Jared may be contacted at (901) 522-2317 or [email protected]
 Tennessee law also provides for permanent total disability (“PTD”) benefits to those employees who are incapacitated from working an occupation that brings an income. While much can be said of PTD benefits and the various nuances associated with such benefits, I have chosen to direct the focus of this article to the types of permanent partial disability benefits available.