Tenn. Code Ann. § 50-6-242 – provides that in “extraordinary cases” in which the injured worker is entitled to increased benefits pursuant to Tenn. Code Ann. § 50-6-207(3)(B), 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.
In order 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;
- The injured worker has been assigned a permanent impairment rating of 10% or more to the body pursuant to the AMA Guides by the authorized treating physician selected from a panel of physicians;
- The 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 has the ability to 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.
Christopher Batey v. Deliver This, Inc., et al.
Docket No. 2016-05-0666
Filed February 6, 2018
State File No. 19123-2015
Posture: This is a case before the Appeals Board on interlocutory appeal filed by the employer and employee, and the dispute was whether the employee is entitled to enhanced permanent partial disability benefits.
On February 24, 2015, while bending over to wrap a pallet, Employee felt a “pop” and immediate pain in his low back and left leg. He was provided a panel of physicians and selected Dr. Melvin Law, an orthopedic surgeon, as his authorized treating physician. Dr. Law diagnosed a large disc herniation at L5-S1 and, after Employee completed a course of physical therapy, recommended surgery. Following surgery, Employee continued to complain of weakness and pain in his left leg, and Dr. Law concluded he retained some degree of permanent nerve dysfunction. He placed Employee at maximum medical improvement on August 19, 2015, and assigned a permanent medical impairment rating of 14% to the body as a whole. He also released Employee to “return to work at this time” and listed no permanent work restrictions. In a March 29, 2016 Standard Form Medical Report (Form C-32), Dr. Law noted in the “Functional Capacity Assessment” section certain physical limitations, including limits on lifting, prolonged sitting, prolonged standing or walking, repetitive pushing or pulling, and frequent or repetitive climbing, balancing, stooping, kneeling, crouching, crawling, or twisting. In a February 2017 deposition, Dr. Law testified that, in his opinion, Employee “would not be able to return to his pre-injury status” at work. On cross-examination, however, Dr. Law admitted that he had previously released Employee to return to work as of August 19, 2015, with no permanent work restrictions. Upon further questioning, Dr. Law drew a distinction between formal work restrictions and physical “limitations” based on his review of Employee’s functional assessment.
The trial court concluded Employee was entitled to permanent partial disability benefits of 275 weeks pursuant to the “extraordinary” relief described in section 50-6-242(a)(2). In so holding, the trial court considered the six criteria identified in the statute: (1) Employee was eligible for increased benefits pursuant to section 50-6-207(3)(B) (also called a “resulting award”); (2) Employee was assigned a permanent medical impairment rating at or above 10% to the body as a whole; (3) the treating physician certified that Employee could not perform his “pre-injury occupation”; (4) Employee was not earning wages equal to or greater than 70% of his pre-injury salary; (5) limiting Employee’s award to the increased benefits as provided in section 50-6-207(3)(B) would be inequitable; and (6) Employee’s case was “extraordinary.” Employer has appealed the compensation order.
The appeals board affirmed in part and modified in part the trial court’s orders. First of all, with regard to the requirement that the Judge find 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 has the ability to 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 has the ability to 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 Appeals 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 still 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 is 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.
Courtney Paterson is an Associate in the Nashville office and her major practice areas include automobile liability, insurance coverage litigation, insurance defense litigation, insurance subrogation, premises liability, products liability and workers’ compensation.