Kenneth M. Wright v. National Strategic Protective Services, LLC

The Special Workers’ Compensation Appeal Panel of the Tennessee Supreme Court recently issued their opinion the case of Kenneth M. Wright v. National Strategic Protective Services, LLC.

This case dealt with many issues on appeal, but one important issue had to do with Tennessee Code Annotated §50-6-242 (a)(2), otherwise referred to as extraordinary relief. This statute allows the Court to award up to 275 weeks of benefits if multiple factors are met. One of those factors requires the following:

The authorized treating physician has certified on a form provided by the division that due to the permanent restrictions on activity the employee has suffered as a result of the injury the employee no longer has the ability to perform the employee’s pre-injury occupation. The authorized treating physician’s certification pursuant to this subdivision (a)(2)(B) shall have a presumption of correctness that may be overcome by the presentation of contrary clear and convincing evidence.

The Employee in this case obtained certification form from the authorized treating physician and submitted it to the Court on December 5, 2017. The Trial was originally set for December 8, 2017. The Employer filed a Motion to Strike the certification form on December 6, 2017. Instead of striking the form, the Court instead granted the Employer a continuance acknowledging the Employer’s argument they should have time to rebut the certification. On February 9, 2018, the Employer filed a Motion to Exclude the certification form based upon hearsay and lack of authentication. This Motion was denied and the Trial took place on April 18, 2018.

The Trial Court then found that the Employee met the necessary elements under TCA §50-6-242. The Employer appealed arguing that the Trial Court erred by admitting the physician certification form. At the Trial Court level, the form was admitted under the business records exception to hearsay, Tennessee Rule of Evidence 803(6). Alternatively, the Trial Court also admitted the form based upon TCA §50-6-242, should the Appellate Court find the business records exception did not apply. The Appeals Panel did just that, and found that the business records exception did not apply, but then agreed that it should be admitted under TCA §50-6-242. They found that since the requirements under section (B) of TCA §50-6-242 were met, the document or report became a self-authenticating official document certified by the Department of Labor and Workforce Development and therefore should not be excluded as hearsay.

Essentially, the holding indicates that once the certification form is filed with the Court, it becomes evidence and shifts the burden to the Employer to solicit contrary evidence to overcome the presumption of correctness. Objecting to the document on the basis of hearsay will not work, but Employers can still challenge the document on other grounds including sufficiency of the opinion. Regardless of the path chosen to challenge, this holding will require Employers to seek additional deposition testimony in order to challenge the certification form once it has been filed by the Employee.