The Tennessee Supreme Court released a panel decision on July 19 finding two significant provisions of the Reform Act constitutional, in Worrell v. Obion County School District.

Jane Salem

The opinion came about a decade after the Reform Act took effect. It wasn’t the first time that a party challenged the law, but it was the case that resulted in the most substantive appellate opinion on the subject to date.

Before going any further, I’m going to urge you to please read the opinion in its entirety. It’s not easy to summarize a legal opinion on constitutionality, which is a complicated subject, and one that I dare say many lawyers don’t understand, either, unless it’s their practice area.

The opinion

The case involved an alleged aggravation of a preexisting condition.

Albert Worrell injured his shoulder at work. The treating physician performed a rotator cuff repair, and the claim settled. Three years later, the employee sought shoulder replacement surgery under the open medical benefits provision of the agreed order.

The Court of Workers’ Compensation Claims denied the surgery on medical causation grounds. Specifically, when asked about the cause of the employee’s need for a total shoulder replacement, the treating doctor wasn’t able to say whether the work injury and initial surgery were a greater than 50% cause. The doctor noted that Worrell had “severe underlying problems with his shoulder,” and he agreed with the employee’s counsel that there was "‘no medically accepted way to quantify [that] preexisting condition into a percentage.’”

The Appeals Board affirmed the trial court’s decision. As part of that appeal, the employee raised constitutional challenges to the statute. But the Appeals Board reminded that it has no authority to rule on a facial challenge to the constitutionality of the Workers’ Compensation Law.

On further appeal to the panel, Worrell challenged only the constitutionality of two provisions of the Reform Act. First, the act eliminated the remedial construction requirement in Section 50-6-116 and replaced it with a neutral construction. Second, the act also amended the definition of “injury” in Section 50-6-102 by adopting a more exacting standard.

“Injury” now means “an injury ... arising primarily out of and in the course and scope of employment, that causes death, disablement or the need for medical treatment of the employee.” Further, the term injury “shall not include the aggravation of a preexisting disease, condition or ailment unless it can be shown to a reasonable degree of medical certainty that the aggravation arose primarily out of and in the course and scope of employment.” This requires that the employment cause more than 50% of the injury, considering all possible causes.

Worrell made a substantive due process argument under the federal and state Constitutions, contending that the law deprived him of life, liberty or property without due process. The panel examined the statute by giving a “rational basis” review: The law survives if it merely “bears a reasonable relation to a proper legislative purpose and is neither arbitrary nor discriminatory.”

The impartial construction “easily survives” this review, wrote Justice Sarah Campbell for the panel.

“It is not difficult to identify a rational purpose for this provision: The neutral construction requirement promotes the predictable interpretation of the workers’ compensation statutes and ensures that employees and employers are treated equally. This purpose reflects a legitimate government interest,” Campbell wrote.

The amended definition of “injury” similarly cleared that hurdle.

Campbell wrote, “One possible purpose of the amended definition is to reduce workers’ compensation insurance premiums for employers, which is a legitimate government interest.” The revised definition “is reasonably related to this purpose because it is conceivable that requiring proof of causation will reduce costs for insurers and thereby lower employer premiums. And this provision is neither arbitrary nor discriminatory because the causation requirement applies equally to all employees.”

The panel likewise rejected Worrell’s characterization that these provisions are “conscience-shocking.” Employees who are entitled to benefits under a fair interpretation of the law will still receive them, the panel reasoned, pointing to aggravation cases where employees prevailed. And though the physician in this case had difficulty quantifying in numeric terms the work-relatedness of the injury, in other cases, courts had awarded benefits based on a physician’s findings.

Worrell also made an equal protection challenge, which met a similar fate. Both the federal and state Constitutions guarantee equal protection of the law, meaning “all persons similarly circumstanced shall be treated alike.”

Worrell argued that the amended definition of “injury” created a distinction between workers with preexisting asymptomatic degenerative conditions and those without.

The unpersuaded panel concluded, “Mr. Worrell suggests that the challenged definition disproportionately burdens employees with preexisting conditions — whom he claims are mostly older — by making it more difficult for them to prove causation. But even if he were right that the definition is discriminatory in effect, he still cannot prevail on his equal protection challenge because he has failed to present any evidence that the General Assembly enacted the Reform Act for the purpose of discriminating against employees with preexisting asymptomatic degenerative conditions.”

Further, the equal protection challenge triggered only a rational-basis review, and the same reasons — reducing premiums for employers — serve a legitimate government interest.

Ramifications

The opinion highlights the important role the treating physician plays. The doctor in this case just couldn’t express causation in percentages as the statute requires, for whatever reason. But as the opinion points out, other doctors have had no problem doing that, and employees, even older persons, recovered. The outcome of many cases, and especially those involving the alleged aggravation of a preexisting condition, turns almost exclusively on the doctor’s words.

But more importantly, the opinion was the first to tackle the substantive constitutional arguments involving the Reform Act. As previously stated, others have challenged its constitutionality, but until now, the appellate courts ruled on them on procedural grounds only.

In 2019, the employer in Bunton v. Sanderson Pipe Corp. raised “as-applied” constitutional challenges to a bureau rule. But the panel held that it hadn’t raised the issue before the trial court, so it was waived.

More recently, a panel in 2021 in Johnston v. Siskin Steel & Supply Co. wrote that the lower court’s determination “obviates the need to address his constitutional challenge[.]” Johnston, like Worrell, argued that the definition of “injury” was unconstitutional. The panel explained, “We resolve constitutional issues only when absolutely necessary for determination of the case and the rights of the parties.”

So the bigger takeaway from Worrell is that the Workers’ Compensation Law remains intact. (I just buried the lede.) It’s not an exaggeration to say that the entire system in Tennessee would’ve been altered if the court had stricken those provisions.

The full Supreme Court declined to hear the case, so Worrell is final.

Jane Salem is a staff attorney in the Tennessee Court of Workers' Compensation Claims, Nashville. This entry is republished with permission from the court's blog.