By Jane Salem, Staff Attorney

Tennessee Court of Workers’ Compensation

Nashville, TN

 

Last summer, the Tennessee Workers’ Compensation Appeals Board wrote, “This appeal highlights the often daunting challenge of quantifying causation in circumstances where an employee is alleging a work-related aggravation of a pre-existing condition.”

Daunting indeed and an understatement. For over a century, courts have been wrestling with these cases, and it remains a hot topic to this day. The good news is, additional guidance is coming soon from the full Tennessee Supreme Court.

Looking back

The Supreme Court first considered the issue in Tennessee Eastman Corporation v. Russell in 1924, just five years after the Workers’ Compensation Law took effect.

In Russell, the employee worked the night shift in a distillery and was found dead one morning, appearing to have fallen from a platform. The employer argued he suffered from “epileptic fits,” but the trial court found he wasn’t epileptic. Instead, the judge concluded the employee had been “previously injuriously affected physically by the fumes and odors arising from the vats or stills,” and that this likely happened again, causing the deadly fall.

The high Court didn’t cite case law from other states but relied on treatises—books by learned scholars—to find the injury compensable: “[A] pre-existing weakness or disease will not prevent the injury from being the result of an accident, if the accident is the immediate cause of the injury,” It wrote. Further, “an acceleration or aggravation of a pre-existing ailment may be a personal injury, in the sense of the compensation laws.”

Fast-forward to 1948. In Swift & Co. v. Howard, the Supreme Court held, “When an employer employs a workman he takes him as he is and assumes the risk of having a weakened condition aggravated by some injury which might not hurt or bother a perfectly normal, healthy person.” (Emphasis added). The principle of taking the employee “as is” remains good law. The Appeals Board cited it in 2023 in a case that was appealed to a Supreme Court Special Workers’ Compensation Panel. The employee unsuccessfully challenged the constitutionality of the Reform Act of 2013 before a Supreme Court Panel in Worrell v. Obion County School District.

More than three decades after Swift, the Supreme Court narrowed the compensability of work aggravations in Boling v. Raytheon Co. In this 1969 opinion, the Court made a distinction for cases where the aggravation resulted solely in an increase in pain. They wrote, “what we have here is an employee with a disabling injury or disease not related to employment, but the employment does aggravate the disabling injury or disease by making the pain worse. This situation does not constitute an ‘accident’ as this word is used in our workmen’s compensation statutes.”

The Court reiterated this limitation in 1987 in Smith v. Smith’s Transfer Corp. The justices concluded that the employee’s “work for defendant aggravated her pre-existing condition by making the pain worse but it did not otherwise injure or advance the severity of her [preexisting condition] or result in any other disabling condition. Thus, we find plaintiff did not sustain an injury by accident within the meaning of the Worker’s Compensation Act[.]”

More than two decades passed before the full Supreme Court released Trosper v. Armstrong Wood Products in 2008. In Trosper, the justices settled the question of what an employee must show for an aggravation to be compensable. They noted inconsistent results from earlier appellate cases and gave the following rule:

“[T]he employee does not suffer a compensable injury where the work activity aggravates the pre-existing condition merely by increasing the pain however if the work injury advances the severity of the preexisting condition or if as a result of the pre-existing condition the employee suffers a new distinct injury other than increased pain then the work injury is compensable.”

Looking ahead: compensability under the ‘New Law’

Shortly after passage of the Reform Act in 2013, the newly-created Appeals Board questioned the viability of Trosper, in a case where compensability was challenged at the interlocutory (nonfinal) stage. The Board pointed out that the Trosper Court applied the remedial construction to find the injury compensable. The Reform Act did away with that and requires courts to construe the workers’ compensation law fairly and impartially. The Act also defined “injury” to exclude “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 employment.”

The Appeals Board reversed the trial court’s ruling after an expedited hearing determined that the employee was likely to show he would prevail at trial that his aggravation of a preexisting condition arose primarily out of employment. The case is Miller v. Lowe’s Homes Centers, Inc., released in 2015.

Judges on the Court of Workers’ Compensation Claims haven’t cited Trosper since. But notably, a Supreme Court Panel did recently in Edwards-Bradford v. Kellogg Company, a case where the date of injury was after the new law took effect.

More recently in The AdMIRable Review, we informed you that a complex case involving the aggravation of an employee’s preexisting knee osteoarthritis was heading to a Tennessee Supreme Court Workers’ Compensation Panel.

In that case, Edwards v. Peoplease, the Appeals Board split. The majority cited several post-Reform Act cases and gave guidance for trial judges:

“[A] court can consider several probative factors in determining whether a work-related accident contributed more than fifty percent in causing the need for medical treatment, including but by no means limited to: (1) evidence that employee was asymptomatic prior to the work accident but became symptomatic after the work accident; (2) evidence that the employee had no functional limitations to the injured body part prior to the work accident but had functional limitations after the work accident; and (3) evidence, or a lack of evidence, of an ‘anatomic change’ to the body part or condition in question.”

The majority concluded the trial court erred by finding that the primary cause of the employee’s need for bilateral total knee replacements was a work accident, not the employee’s underlying severe osteoarthritis.

The dissent, however, concluded that sufficient evidence supported the finding that the work accident caused new or increased symptoms that led to functional limitations and that the need for the knee replacements was “hastened” by the work accident.

Notably, the Appeals Board in Edwards didn’t cite Trosper or Edwards-Bradford.

The big news now is that instead of a Supreme Court Panel, the full Tennessee Supreme Court will decide the case.

The full Court rarely hears workers’ compensation cases anymore. It also hasn’t tackled a case involving an aggravation of a preexisting condition in nine years and not since passage of the Reform Act. In that time, however, plenty of aggravation cases have been before the Appeals Board and Panels—which shows how truly “daunting” these cases can be. They’re often medical-intensive. Also noteworthy is the fact that the Court asked the parties to brief the issue of how medical testimony should be considered by an appellate court. Is the trial court’s decision considered “de novo” (of new) or for an abuse of discretion? The outcome of that question is important because it might affect a party’s decision on whether to appeal an order.

Perhaps the Supreme Court will tell us in Edwards if/when Trosper applies. Regardless, Edwards is likely to be the next seminal case on the topic, for application for decades to come. We’ll let you know the outcome in an upcoming issue of The AdMIRable Review.