Appeals Board Clarifies Notice and Prejudice

An Appeals Board opinion released on Monday offers guidance on notice and in particular what constitutes prejudice to an employer, among other notable rulings.

In Hannah v. Senior Citizens Home Assistance Services, Inc., Donna Hannah, a home healthcare provider, alleged she injured her neck when moving a client. At first, she thought she’d pulled a muscle and didn’t report the incident immediately. But two weeks later, Hannah went to the emergency room when her symptoms worsened.

Dr. Edward Akeyson, a neurosurgeon on call at the hospital, recommended an emergency surgical fusion, which he performed the next day. Hannah notified a supervisor of her injury on the day she went to the ER, but she testified she also texted a coworker about it previously.

Dr. Akeyson continued treating her after surgery and ultimately assigned a nine-percent permanent impairment.

Senior Citizens Home Assistance later denied the claim, asserting that Hannah hadn’t given timely notice of an injury, which it contended resulted in prejudice. It further alleged that Hannah failed to identify by time and place of occurrence an accident resulting in injury.

Dr. Patrick Bolt later performed an employer’s examination. He concluded that Hannah’s pain began two weeks before her emergency room visit when she transferred a patient from an electric chair. Dr. Bolt assigned a seven-percent impairment.

After a compensation hearing, the trial court concluded that Hannah gave sufficient notice of her injury. The judge awarded temporary disability benefits, both temporary total and temporary partial, and permanent disability benefits based on the impairment rating assigned by the treating physician. The judge additionally awarded attorneys’ fees and expenses for a wrongful denial.

Senior Citizens Home Assistance appealed, and the Appeals Board affirmed all rulings except for the temporary partial disability award.

The Opinion

The first of five issues was, as a threshold, whether Hannah alleged an identifiable work incident. Senior Citizens Home Assistance contended the record contained “inconsistencies” about the mechanism of injury and Hannah didn’t carry her burden of proving an identifiable incident.

The Board disagreed, reasoning that Hannah gave a consistent description of how she became injured at all times: “transferring a client from an electric chair to a walker to a shower chair and back again, resulting in pain in her shoulder.” Text messages between Hannah and her supervisor were consistent with that account. Further, the two medical experts testified that the mechanism of injury she described was consistent with the type of injury she sustained.

The second issue, also of threshold importance, was notice.

Generally speaking, the statute requires written notice to the employer within 15 days after a work accident occurs. And, as part of the 2013 Workers’ Compensation Reform Act, the General Assembly clarified the notice requirement: “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 . . . , that the employer was prejudiced by the failure to give the proper notice, and then only to the extent of the prejudice.”

The Board agreed with the trial court that: Hannah provided a sufficient explanation as to why she didn’t give immediate notice of the incident; notice given on the fifteenth day after the incident was sufficient; and Senior Citizens Home Assistance didn’t prove “actual prejudice.”

As to prejudice, the Board reasoned, “Although Employer was not able to administer a drug screen immediately following the incident in accordance with Employer’s stated policy, there are no suggestions that Employee was intoxicated or under the influence of drugs or alcohol at any time during her employment.”

Senior Citizens Home Assistance also argued its ability to investigate was compromised because many of its clients who might have offered factual testimony have memory problems. The Board rejected that, too, because it offered no evidence that it attempted to interview any clients.

Senior Citizens Home Assistance additionally contended it wasn’t given an opportunity to provide a panel of physicians. The unpersuaded Board wrote, “We view these circumstances as being similar to those cases in which medical care is provided on an emergency basis and the doctor on call at the time of the emergency becomes the initial authorized physician. Such circumstances do not hinder an employer’s ability to offer a panel of physicians when such emergency care has ended.”

Moreover, the carrier took Hannah’s recorded statement and obtained signed medical releases, so it was able to investigate and showed no actual prejudice from the delayed notice.

On the third issue, temporary disability benefits, the Board reversed.

The Board found that Dr. Akeyson’s records showed that two weeks after surgery, he imposed work restrictions. So temporary disability for this period was correct.

But the trial judge awarded temporary partial disability afterward, which was error. The Board wrote that no evidence suggested that the employer offered Hannah a return to work within her restrictions, but more importantly no evidence suggested that she made the employer aware of her restrictions, giving the employer an opportunity to accommodate them.

Fourth, as to permanent disability, the Board rejected Senior Citizens Home Assistance’s argument that Dr. Bolt gave the more accurate rating.

The Board wrote: “The trial court considered both impairment ratings, noting that Dr. Akeyson treated Employee for two years. The court acknowledged that both doctors ‘used the same table in the AMA Guides but selected different classes of impairment based on whether [Employee’s] radiculopathy had resolved with surgery.’ According to the trial court, Dr. Akeyson ‘offered a detailed and plausible explanation of his methodology in assigning a rating.”’

The fifth and final issue was the fee award for an alleged “wrongful” denial.

The Workers’ Compensation Law gives trial judges the discretion to award additional attorneys’ fees and expenses when an employer “[w]rongfully denies a claim.” The word “wrongfully” is statutorily defined as “erroneous, incorrect, or otherwise inconsistent with the law or facts.”

Senior Citizens Home Assistance argued that it didn’t learn of Hannah’s work injury until she was at the emergency room for surgery, and that it “did its best to investigate the claim,” including speaking with multiple staff members about conversations they had with her about her alleged injury. It pointed to Hannah’s statement to her supervisor early on that she didn’t know the cause of her pain, and that Dr. Akeyson didn’t know she was claiming a work injury until he was contacted by her attorney two months after surgery. The denial, it said, “was reasonable based on information available to them,” and it argued it shouldn’t be “penalized.”

In response, the Board noted that the statute is clear in defining “wrongful” to include circumstances where a denial is “erroneous or incorrect.” The Board also cited case law about the “abuse of discretion” standard. “A court abuses its discretion when it causes an injustice to the party challenging the decision by (1) applying an incorrect legal standard, (2) reaching an illogical or unreasonable decision, or (3) basing its decision on a clearly erroneous assessment of the evidence.” Further, the standard “does not permit an appellate court to substitute its judgment for that of the trial court.”

The Board concluded that the employer hadn’t addressed how or in what manner the trial court purportedly abused its discretion in awarding attorneys’ fees and expenses. So it affirmed on this point.

Judge David Hensley wrote the opinion for the three-judge Board. It was his last published opinion; he retired at the end of March.

By Jane Salem

Courtesy of the Tennessee Court of Workers' Compensation Claims

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