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Salem: Top Appellate Decisions of 2023, Part 2: [2024-02-02]

Welcome back.

Jane Salem

Jane Salem

In the last blog post, I took a look back at five opinions from 2023 about jurisdiction, extraordinary relief, mental injuries, medical expenses and everyone’s favorite subject: attorneys’ fees.

Up next is brief mention of five more essential cases from last year, including opinions about aggravations of preexisting injuries, notice, panels, unauthorized treatment, pain management, temporary disability benefits and authorized treating physicians.

Once again, please read these opinions in their entirety. Thanks.

Edwards-Bradford v. Kellogg Co.

This Supreme Court Panel opinion reiterated longstanding case law about what must be shown to prove a compensable exacerbation/aggravation of a preexisting condition.

The panel reminded that an injury isn’t compensable if it results only in increased pain or other symptoms caused by the underlying condition. But if the work injury advances the severity of the preexisting condition, or if, as a result of the preexisting condition, the employee suffers a new, distinct injury, it’s compensable.

In this case, the independent medical examiner testified that the work incident made the employee’s preexisting condition symptomatic, but he didn’t discuss how the work injury advanced (think anatomic change) the preexisting condition or caused a new, distinct injury, so his opinion didn’t rebut the presumption of correctness attached the authorized physicians’ opinions.

Like I said, nothing new under the sun. Interestingly, Trosper v. Armstrong Wood Products is quoted. If you cite Edwards-Bradford in your next aggravation case, the judge will surely be impressed with how well you keep up with case law.

Arlene Ernstes v. Printpack Inc.

This was arguably the Appeals Board’s big kahuna from last year. Top banana. The kingpin. (You get it now, right?)

The opinion was 19 pages long, gave a complete history of the notice requirement in the statute and yielded a step-by-step framework for how to evaluate if notice is adequate. And, it was recently affirmed by the Supreme Court’s Appeals Panel.

Those steps, summarized, are:

  • Did the employee provide timely written notice of the alleged work-related injury?
  • If not, did the employer have actual knowledge of the alleged work-related accident or injury?
  • If no to both timely written notice and actual knowledge on the employer’s part, did the employee show a reasonable excuse for the failure to give proper notice to the employer?
  • If no to all of the above (no timely written notice, no actual knowledge and no reasonable excuse), the claim should be denied and dismissed.
  • If written notice was given but the employer affirmatively asserts a defect or inaccuracy in the notice, the burden of proof shifts to the employer to prove actual prejudice it suffered from the defective or inaccurate notice and, if prejudice is found, the trial court can create a remedy, if appropriate, only to the extent of the prejudice.

Cook v. Newton Nissan of Gallatin/Newton Ford LLC

The board gave helpful instruction on physician panels and second opinions for pain management in this case.

First, they held that when an employee is referred to pain management and the employer offers a panel that includes a physician who has already treated the employee, concluded he had nothing else to offer and referred her back to another physician, the trial court didn’t err by finding that the doctor was unwilling to treat her. This was even though the doctor in question had testified that he was “always glad to reevaluate and see if there are any other options.”

As for second opinions in pain management, the board clarified that Section 204(j)(3) prohibits an employee in pain management treatment from requesting a second opinion, but it doesn’t limit a treating physician’s ability to request a medical evaluation by a different provider.

McKim v. Stansell Electric

This one dealt with medical reports and restrictions and gave a useful evidence ruling.

The board concluded that the bureau rule identifying the required elements of a medical report applies to the treating physician, and it doesn’t provide grounds for an employer to cease or fail to initiate temporary disability benefits, especially where other evidence showed the employee’s entitlement to benefits.

Another bureau rule was also interpreted in this case. Specifically, the rule allowing the admissibility of signed “letters or written statements addressing medical causation and/or the reasonableness and necessity of treatment and medical bills” at an expedited hearing doesn’t limit the introduction of these questionnaires to only when they address one or both of those topics.

Owens v. Sitters Etc.

The board saw these parties repeatedly throughout the past few years. But in November, it reviewed the compensation order, so it will never encounter them again (maybe). In this last appeal, the board explained when presumptions attach to authorized treating physicians who don’t know they’re authorized physicians.

They held that the judge erred by concluding that the treating physician’s opinion wasn’t entitled to a presumption of correctness despite having been selected from a panel, even though the doctor, according to the judge, “never acted as a treating physician and instead documented the employee’s one-time visit as a second opinion.”

Despite this self-characterization, the doctor was selected from a panel, and no evidence suggested that the employer limited the scope of his evaluation to a second opinion only or instructed him that he wasn’t authorized to treat any condition he deemed to be causally related to the work accident. Therefore, his causation opinion was entitled to the presumption.

In this multifaceted case, the board also discussed permanent total disability, temporary disability benefits and payment for unauthorized treatment.

On that last topic, the judges reminded that an employee should consult his employer before incurring expenses for unauthorized treatment if the employee expects the employer to pay for it. Still, an employee who didn’t do this was entitled to payment of these expenses at the final hearing, where the employer knew from the ongoing litigation that she’d been seeking authorization for many years, during which the court ordered the employer to furnish medical benefits, and her physician had testified twice about the necessity of the proposed surgery.

In other words, the employer had notice that she intended to undergo the surgery, even if it wasn’t explicitly conveyed.


I feel safe in predicting that robust oral arguments and intriguing appellate opinions are in the works for 2024.

Looking back, I didn’t touch on so many other important opinions, and it wasn’t easy deciding which cases to discuss. Feel free to disagree with my selections or my interpretations; leave a comment.

And above all, always keep up with the law.

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.