The Tennessee Workers' Compensation Appeals Board rendered an interesting decision on October 11, 2019, in Caldwell v. Federal Mogul Motorsports, Docket No. 2019-04-0074. Scholars and litigants may find interest in the case timing, the procedure, and the ultimate outcome. The order initially appealed was entered on May 3, 2019, although there was further argument on June 10, 2019 (and another order, adding to the analysis and interest). With the decision on October 11, 2019, the Tennessee appellate process required a mere 123 days after that final argument. That is notably fast.
The case was "interlocutory," meaning that the trial has not concluded. The trial judge made procedural decisions about the case which the employer contended needed to be reviewed immediately rather than awaiting a final adjudication of the case. Appellate judges and courts do not favor this kind of review because it is more efficient for appellate review to occur just once after an entire case has been tried to completion and a final adjudication entered. At that time, each and every alleged error can be considered at one time, rather than piecemeal as they occur. Thus, while interlocutory review occurs, it is not common.
In Caldwell, the facts are similar to a multitude of workers' compensation cases across the country. An employee was working normally, experienced a physical complaint, was seen by a physician, diagnosed, and had surgery recommended. The employer/carrier did not accept the conclusions of the surgeon involved and therefore exercised its right to have the employee's condition reviewed by another physician. In Tennessee, this is referred to simply as a "medical evaluation," and the statutory authority is Tenn. Code Ann. section 50-6-204(d). In Florida, we would call this exam an "independent medical examination." See section 440.13(1)(i) and (5), Florida Statutes.
Despite being informed of this evaluation, the employee repeatedly refused to attend. Eventually, the employer/carrier sought relief from the workers' compensation court (when Tennessee removed workers' compensation litigation from its courts of general jurisdiction just a few years ago, it created an administrative system for adjudications similar to many other states. However, it specifically labelled its workers' compensation judges a "court"). That is a distinction from Florida, in which the Judges of Compensation Claims are clearly "not a court of this State," Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So. 2d 474 (Fla. 2004).
The workers' compensation judge concluded that the employee must attend the statutory medical evaluation sought by the employer. The judge denied the employee's request to have the examination video-recorded, concluding that it "would be beyond the statute's scope." However, the judge noted the Tennessee statute allows a treating physician to be "present" at such exams, and ordered that the employee's treating physician could "'attend' the examination by video-conference," which the judge concluded was "a 'reasonable compromise." The order noted that such a methodology would be "simple, cheap, reliable, and available to everyone."
The Caldwell opinion is intriguing procedurally for two reasons. First in its discussion of the timeliness of the notice of appeal. The appellate Board concluded that the employer could not appeal the original order entered May 3, 2019, as it did not file a notice of appeal thereafter within the 7 business days afforded, instead asking the trial court to reconsider its initial ruling (note in Florida 30 days is allowed for a notice of appeal). The Board explained that a party might file a timely notice and yet pursue other issues with the trial court. In such a setting, the appellate deadlines might be extended by those further issues. However, the Board reiterated, that depends nonetheless upon the filing of a timely notice of appeal. As none was filed here, the Board concluded it could not review the May 3, 2019 order.
However, the Board concluded that the appeal was filed timely following the June 10, 2019 order, which was predicated on further argument and facts. The Board noted that to allow the employer to appeal the May order, in this factual setting, would allow "a party to subvert the interlocutory appeal deadline by filing a motion to amend . . . after the expiration of that deadline." In essence, however, some will likely conclude that actually occurred in this case nonetheless. However, that outcome is only because the trial court heard the reconsideration motion and then entered the June order that was ultimately reviewed. Had the trial judge declined to reconsider the May decision, it is possible the Board would have simply concluded it lacked jurisdiction and the trial judge's decision would have remained the law of this case.
Notably, the Tennessee Board reminded that interlocutory orders are subject to change in any case. It noted that such an order can be "amended, modified, or otherwise revised at any time prior to the issuance of a compensation order." That has been the subject of this blog. See If it is Moot What Does it Matter, and When there is a Different Judge. Often, I am surprised by lawyers overlooking this character of procedural orders.
Another interesting procedural point in this case is the circumstance of the June reconsideration. The trial judge's staff contacted the parties on June 10, 2019, and "requested a teleconference." Scheduling conflicts led to that conference happening the same day. Note the parties had hours of notice, not days. When the employer realized that a decision would be made, that is that the "teleconference" was in fact a "hearing," the employer objected. It asked to have a court reporter present, which was denied. The trial court's recording system was also inoperable. Thus, no record of those proceedings was made. Notice is an essential element of due process. However, when complaining of process a party needs to be able to both describe and substantiate actual harm. See Substitute Judge and The Rule" and other Lessons from Texas.
The Tennessee Board essentially concluded that there was no evidence presented at that unrecorded hearing, but only argument. It explained that to prevail on the point of no recording, the employer "must show that the trial court's decision to hear arguments" without a record was an "abuse of discretion." Or, that the decision to proceed without a record was "against logic and reasoning that caused an injustice." The Board concluded that statutory authority in Tennessee specifically gives the trial judge discretion regarding whether to conduct hearings at all (the judge could have made the decision based on the filings submitted, which is the normal process for motions in Florida). And, the Board concluded that the error of proceeding without a record was "harmless under the circumstances."
As an aside, I advocate for recorded interactions and clarity of purpose. If a decision is to result from any gathering, that should be both labeled and noticed as a "hearing." A "conference" is of little use, should not result in a ruling, and should therefore be rare. Any interaction on a case, before me, will be "on the record." There is no expense to engaging the recording system Florida uses. The purpose of this system is to afford Floridians due process, and a recording of any hearing or conference is integral to that service.
As an aside, I advocate for recorded interactions and clarity of purpose. If a decision is to result from any gathering, that should be both labeled and noticed as a "hearing." A "conference" is of little use, should not result in a ruling, and should therefore be rare. Any interaction on a case, before me, will be "on the record." There is no expense to engaging the recording system Florida uses. The purpose of this system is to afford Floridians due process, and a recording of any hearing or conference is integral to that service.
Turning to the substantive matter, the Board reversed the order requiring that the examination be "video-conferenced." It perceived a variety of potential complications with the procedure. However, its decision was predicated primarily upon the plain language of the examination statute. That provision says an employee must attend such an examination and that the employee has "the right to have the employee's own physician present at the examinations." While the debate as to who may be at such examinations across America is seemingly a modern one, the Board noted this attendance language has persisted in the Tennessee statute since it was enacted; coincidentally that was 100 years ago.
Following the plain meaning of the statute, the Board concluded that "present" does not mean by videoconference. It said that "no reasonable interpretation of the phrase 'present at the examination' would include "an individual's electronic observation." The Board stressed that in interpreting "words in a statute," the interpreter (Board or court) "must 'avoid a construction that unduly restricts or expands the meaning of the language used.'" To interpret "present" to include video-presence would, according to the Board's analysis, expand the meaning of "present." The Board specifically noted that when the statute was written there was no such thing as video conferencing.
Having thus concluded that the video-presence order was inappropriate legally, the Board also noted logistical issues in support of its decision. It took issue with the trial judge's decision that such technology is "simple, cheap, reliable, and available to everyone." The Board noted limitations with cellular "service," Internet "connections," transmission "security," and user sophistication. The Board noted complications with who would provide the camera "device," who would ensure the transmission was viewed only by the treating physician, whether the video would include more than the physical examination (patient intake, interaction with examiner's staff, etc.), whether the viewing physician could direct the camera operator's focus and direction, who would rectify technological issues that might arise, and more.
Reading the Board's questions regarding logistics reminded me of an episode in a recently popular sitcom The Big Bang Theory. Therein, one of the characters conceives of a substitute for travel, sending instead a motorized cart (over which he has hung a familiar t-shirt), upon which he has mounted an iPad. With this rudimentary remote control, the character interacts with multiple individuals on the show. Would such a device remedy the Board's logistical concerns? Would such a device of the physician's choosing, of the physician's operation, at the sole propriety and risk of the physician be sufficient to answer those concerns? Or, is the electronic presence itself the real issue? It is notable that the logistic concerns of the Board were raised in addition to the gravamen of its decision, that is, the plain language of the statute and the word present.
Photo courtesy of City-Data.com
Thus, despite the character of the technology proposed, the decision of the Board would likely not change if such a device were employed. The decision, or "holding" in Caldwell is predicated upon the meaning of the words in the statute, and the construction of following those plain words. The decision is based upon not expanding the meaning of the word "present." Thus, answering the logistical questions raised is not likely to change the outcome. However, the continuing march of technological innovation and imagination could perhaps lead eventually to robots or similar remote control drones being interestingly engaged in our workers' compensation community. Does anyone remember Bruce Willis in Surrogates?
There is always the potential for legislative change to enable technology further. As the Board noted, the language in the statute is controlling. That language can be easily changed by the legislature to enable the use of technology if it chooses. But, until then, in Tennessee to be "present" you have to be there. An intriguing decision for various reasons, Caldwell is recommended reading.
There is always the potential for legislative change to enable technology further. As the Board noted, the language in the statute is controlling. That language can be easily changed by the legislature to enable the use of technology if it chooses. But, until then, in Tennessee to be "present" you have to be there. An intriguing decision for various reasons, Caldwell is recommended reading.
