Top Ten Questions Addressed in 2000

Let's take a look back at 2000 at the 10 top questions posed in decisions of the Tennessee Supreme Court and the workers' compensation appeals panels.

1. Will a traveling employee be able to recover workers' compensation benefits for an injury that occurs while he or she is not actually performing work for his or her employer?

Could be - according to the Tennessee Supreme Court.

The court set out the following rule: A traveling employee - one working away from the regular job site - is generally considered to be in the course of his or her employment continuously during the duration of the entire trip, except when there is a distinct departure on a personal errand. The court also ruled that an injury or death of a traveling employee occurring while the employee is reasonably engaged in a reasonable recreational or social activity arises out of and in the course of employment.

The court's "distinct departure on a personal errand" exception is similar to rulings in prior cases that a substantial and unauthorized deviation or detour for a personal purpose removes traveling employees from the scope of their employment.

The court seems to be adopting a more liberal standard with traveling employees than is currently applied to non-traveling employees with regard to recreational or social activity. For a non-traveling employee's injury to be covered under workers' comp, the recreational or social activity must benefit the employer. The traveling employee's recreational or social activity need only be reasonable. The focus is more on the nature of the activity.

In the case before the Supreme Court, an employee, who was lodged at a motel while he and other employees were laying carpet in another state, drowned in the motel's pool while swimming after a day's work. The case had been summarily dismissed in the trial court, and the Supreme Court sent the case back to the trial court and expressed no opinion as to whether the death of the employee arose out of and in the course of the employee's employment.

McCann v. Hatchett, 19 SW3d 218 (Tenn. Sup. Ct. 5/8/00)

2. When will an employee be considered to have engaged in willful misconduct precluding him or her from recovering workers' comp benefits?

One circumstance under which an employee will be precluded from recovering workers' comp benefits is when the employee willfully fails or refuses to use a safety appliance.

A workers' compensation appeals panel adopted a standard for what is required for an employer to defeat a workers' comp claim on this basis. The employer must prove the following.

• At the time of the injury, the employer had in effect a policy requiring an employee's use of a particular safety appliance;

• The employer carried out strict, continuous, and bona fide enforcement of the policy;

• The employee had actual knowledge of the policy, including knowledge of the danger involved in its violation, through training provided by the employer; and

• The employee willfully and intentionally failed or refused to follow an established policy requiring the use of the safety appliance.

In the case before the panel, the employee failed to use a lockout/tagout procedure which prevents machines from activating while they are being cleaned and otherwise maintained. The employee was on a ladder attempting to grease a turn-roller machine when another employee unexpectedly activated the power to the turn-roller, causing the employee to fall from the ladder.

The panel found that the employer had established three of the four parts of the "willful misconduct" defense. The panel found that the employer had not established strict, continuous, and bona fide enforcement of an established policy. Because the panel's standard had not been instituted when the case was tried, the panel ordered a new trial.

Nance v. State Industries Inc., 26 TAM 3-4 (Workers' Comp. Appeals Panel 11/16/00), adopted by Tenn. Sup. Ct. 12/27/00

3. Will an employee who is injured while he or she is attending an event sponsored by his or her employer be able to recover workers' comp benefits?

It depends on whether the facts of the case meet the so-called "Larson Test."

Under the "Larson Test," recreational or social activities are within the course of employment when

• they occur on the employer's premises during lunch or a recreational period as a regular incident of the employment, or

• the employer, by expressly or impliedly requiring participation, or by making an activity part of the services of an employee, brings the activity within the orbit of the employment, or

• the employer derives a substantial direct benefit from the activity beyond an intangible value of improvement in employee health or morale that is common to all kinds of recreation and social life.

The "Larson Test" was adopted by the Tennessee Supreme Court in 1993. Last year, a workers' compensation appeals panel applied the test in a case involving an employee who attended a NASCAR race sponsored by her employer. The employee was injured while she was walking to the parking area following the race.

None of the three parts of the "Larson Test" were met.

• The injury did not occur on the employer's premises.

• The trial court found that the employee was not "required" to attend the race. Selected employees were sent invitations to the race, and if they accepted the invitation, race tickets were delivered to them.

• The employer did not receive a substantial direct benefit from the employee's participation at the race. The employee checked in and received a name tag upon arriving at the race. But she did not have any other duties - except to enjoy the hospitality table and watch the race.

Cameron v. Fireman's Fund Insurance Co., 26 TAM 3-5 (Workers' Comp. Appeals Panel 11/9/00), adopted by Tenn. Sup. Ct. 12/15/00

4. When will an employee who suffers a heart attack at work be able to recover workers' comp benefits?

A perennial question, the answer to which usually depends upon the medical testimony.

The question often comes up when a law enforcement officer has a heart attack on the job. In Tennessee, there is a rebuttable presumption that any impairment of the health of a law enforcement officer caused by hypertension or heart disease occurred or was due to an accidental injury suffered in the course of the officer's employment. The presumption may be rebutted by competent medical evidence - for example, testimony that the heart disease was caused by smoking or obesity. Once the presumption has been rebutted, the issue - as in cases involving other employees - becomes whether the heart attack was caused by the stress of the job.

Two cases decided by workers' compensation appeals panels last year - both involving truck drivers who suffered fatal heart attacks during over-the-road trips - illustrate the importance of medical testimony.

• One panel affirmed the denial of death benefits when a pathologist, who performed an autopsy, opined that the employee died from arteriosclerotic cardiovascular disease and that his death was not caused by stress or exertion.

• Another panel affirmed an award of death benefits when a doctor testified that long-haul truck driving is quite stressful and sets up emotional responses and fatigue responses which result in inappropriate cardiac activity and that an emotional or physical response was precipitating factors in producing the employee's heart attack.

Volunteer Express v. Wade, 25 TAM 35-1 (Workers' Comp. Appeals Panel 6/20/00), adopted by Tenn. Sup. Ct. 7/20/00, and Forbes v. CNA Insurance Co., 25 TAM 48-3 (Workers' Comp. Appeals Panel 8/22/00), adopted by Tenn. Sup. Ct. 10/24/00

5. When will an employee whose work aggravates a pre-existing condition not be able to recover workers' comp benefits?

The answer is pretty simple - an employee who aggravates his or her pre-existing injury or condition by increasing the amount of pain, but does not otherwise "injure or advance the severity" of the pre-existing injury or condition, will not be allowed to recover workers' comp benefits.

Three cases decided by workers' compensation appeals panels last year illustrate that the application of this principle is not so simple.

• One panel affirmed an award when a treating physician testified that an employee had structural changes in his back as a result of a lifting incident at work, and that as a result of the industrial accident, there was a progression or actual worsening of the employee's underlying spondylolisthesis.

• Another panel affirmed an award when a doctor testified that there was no way to measure the aggravation or advancement of the employee's pre-existing arthritis but that something went on with the employee's knees when a tabletop hit the employee's legs.

• Another panel affirmed the denial of a claim when there was no anatomical change in the employee's shoulder as a result of a work-related incident and when the employee did not prove that his current limitations and restrictions were caused by or related to a work incident.

These cases often turn on what the doctor says. Also the winner at the trial level has the advantage on appeal because the trial court's findings are reviewed with a presumption of correctness. All things being equal, the trial court's decision will stand.

Hicks v. Wilbert Vault Co., 25 TAM 33-3 (Workers' Comp. Appeals Panel 5/18/00), adopted by Tenn. Sup. Ct. 6/29/00; Kobus v. Colonial Moving Co., 25 TAM 22-1 (Workers' Comp. Appeals Panel 3/10/00), adopted by Tenn. Sup. Ct. 4/10/00; Komatsu America International Co. v. Cash, 25 TAM 26-8 (Workers' Comp. Appeals Panel 2/17/00), adopted by Tenn. Sup. Ct. 5/9/00

6. Does the same rule that prevails in second injury cases involving pre-existing physical disabilities apply to pre-existing mental disabilities?

No - this is one question to which the Tennessee Supreme Court gave a clear answer.

If the employee has a pre-existing physical disability and incurs a subsequent injury at work which renders the employee permanently and totally disabled, the employer is only liable for the disability that would have resulted from the subsequent injury, with the remainder to be paid by the Second Injury Fund. But if the employee has a pre-existing mental disability and incurs a subsequent injury at work which renders him or her totally disabled, the employer will be responsible for the entire award.

In the case before the court, the employee, who had lost sight in one eye at age 13, experienced psychological problems - panic disorder, agoraphobia, and major depressive disorder. When the employee was placed in a permanent position, the employer was aware of the employee's pre-existing blindness in one eye and his pre-existing psychological illnesses.

The employee continued to work after injuring his shoulder at home. The employee later fell at work, jarring his previously-injured shoulder. As he was being prepared for surgery, the employee had an adverse reaction as his shoulder was being anesthetized. The employee experienced a severe panic attack. After the surgery, the employee had a recurrence of panic attacks at greater frequency, which exacerbated his depression.

The trial court found that the treatment of the employee's work-related injury had worsened the employee's underlying depression and panic disorder, rendering him permanently and totally disabled.

The trial court assigned vocational ratings of 25% permanent disability from the loss of one eye and 32% permanent disability from the shoulder injury. The trial court ordered the employer to pay 32% of the award and the Second Injury Fund to pay 68%.

The workers' compensation appeals panel, and later the Tennessee Supreme Court, ruled that the employer must pay for the physical work-related disability and resulting aggravated mental disability which rendered the employee totally and permanently disabled.

Bryant v. Genco Stamping & Manufacturing Co., 25 TAM 51-2 (Tenn. Sup. Ct. 12/11/00)

7. When a medical provider accepts less than the amount of a medical bill, can the employer be required to pay the employee the full amount of the bill?

No. Two trial courts ordered the employer or its insurer to pay the employee, who then pays the medical providers and retains the difference between the amount of the medical bills and the reduced amount accepted by the medical providers. In both cases, workers' compensation appeals panels reversed the trial courts.

The law does not require the employer/insurer to pay the cost of medical treatment to the employee, unless the employee has personally incurred the medical expenses.

Duffy v. Tecumseh Products Co., 25 TAM 50-3 (Workers' Comp. Appeals Panel 8/31/00), adopted by Tenn. Sup. Ct. 11/14/00, and State Automobile Mutual Insurance Co. v. Hurley, 31 SW3d 562 (Workers' Comp. Appeals Panel 8/31/00), adopted by Tenn. Sup. Ct. 12/7/00

8. Is there a limit to how long an employee can work after returning from an on-the-job injury and still not have his or her workers' comp award capped at 2.5 times his or her medical impairment rating?

The law does not set a specific time limit, and the courts have not set an outer limit either.

The law says that an award will be limited to 2.5 times the employee's anatomical impairment rating if the employee returns to work for the pre-injury employer at the same or a greater wage. The courts have said that the return to work must be meaningful.

A workers' compensation appeals panel held last year that an employee's return to work was not meaningful when an employee returned to work at the same or greater wage for 18 months before he voluntarily retired. The employee testified that he "kept dragging around" and was assisted by fellow employees and that he was allowed by the employer to "just do what [he] had to do" and rest whenever he needed to. A doctor had placed severe limitations on the employee's ability to work, and the doctor advised the employee to retire.

Taylor v. Emerson Motor Co., 25 TAM 41-7 (Workers' Comp. Appeals Panel 5/8/00), adopted by Tenn. Sup. Ct. 9/1/00

9. Does an employee have to take some initiative to return to work in order not to have his or her workers' comp award capped at 2.5 times his or her medical impairment rating?

The logical answer is yes, and one workers' compensation appeals panel has so stated.

In the case before the panel, an employee was told that she could return to work once she was released by her doctor. The employee was to contact the district manager after completing a work-hardening program. The employer was prepared to offer the employee a position. But the employee did not contact the employer after she was released to return to work.

The panel stated that the employer should not be required to pursue the injured employee relentlessly in order to return the employee to work and that, at some point, the employee has to take the initiative to go back to work.

Webb v. Shoe City Inc., 25 TAM 43-3 (Workers' Comp. Appeals Panel 5/17/00), adopted by Tenn. Sup. Ct. 9/20/00

10. How important is age 60 in determining when an award of workers' comp ends?

Age 60 is a threshold in some instances. Permanent partial disability benefits are based on 400 weeks. Total permanent disability benefits are paid until the employee is eligible for social security except that disabilities resulting from injuries which occur after age 60 are paid for 260 weeks. The benefits are reduced by social security benefits.

Consider the following three examples.

• The Tennessee Supreme Court held that for an employee who is over age 60 at the time of his or her injury but is within 400 weeks of his or her 65th birthday when permanent partial disability benefits become payable, the law does not limit the award for benefits payable only until age 65.

• The Tennessee Supreme Court held that an employer is not entitled to an offset for social security age insurance benefits when an employee over age 60 suffers a work-related injury that results in an award of benefits to a scheduled member - a leg or arm, for example - as opposed to the body as a whole.

• A workers' compensation appeals panel held that when an employee was injured at age 57 and filed a petition to reconsider the award at age 61, the trial court erred in awarding benefits for 400 weeks of permanent total disability less the number of weeks previously paid. Once the award was enlarged to permanent total disability, the employee did not fall within the 400-week provision, which applies to awards of "permanent partial disability." The case was controlled by the provision which allows the payment of an award of permanent total disability benefits until the employee reaches age 65.

Tucker v. Foamex L.P., 31 SW3d 241 (Tenn. Sup. Ct. 11/6/00); Smith v. U.S. Pipe & Foundry Co., 14 SW3d 739 (Tenn. Sup. Ct. 2/22/00); Warren v. American Holding Co., 20 SW3d 621 (Workers' Comp. Appeals Panel 5/18/00), adopted by Tenn. Sup. Ct. 6/19/00

Copyright 2001 M. Lee Smith Publishers LLC

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