Goodman, Robert v. Bellsouth Telecommunications, LLC

FILED
Jul 28, 2022
02:35 PM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Robert Goodman ) Docket No. 2019-01-0820
)
v. ) State File No. 64335-2018
)
Bellsouth Telecommunications, LLC, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Audrey A. Headrick, Judge )

Affirmed and Remanded

This interlocutory appeal concerns the employer’s motions to compel a second employer’s
examination of the employee and to continue a previously scheduled compensation
hearing. The trial court denied the employer’s motion to continue, noting that the parties
had set all deadlines by agreement, including the date for the compensation hearing, at a
scheduling hearing and that the employer waited until after the hearing to file its motions
despite knowing it wanted the employee to undergo a second employer’s medical
examination prior to the scheduling hearing. The employer has appealed. Having carefully
reviewed the record, we affirm the trial court’s denial of the employer’s motion to continue,
find the appeal frivolous, and remand the case for the trial court to determine an appropriate
award of attorneys’ fees and costs associated with the frivolous appeal.

Judge Pele I. Godkin delivered the opinion of the Appeals Board in which Presiding Judge
Timothy W. Conner and Judge Meredith B. Weaver joined.

W. Troy Hart and Matthew B. Morris, Knoxville, Tennessee, for the employer-appellant,
Bellsouth Telecommunications, LLC

Jeffrey W. Rufolo, Chattanooga, Tennessee, for the employee-appellee, Robert Goodman

1
Memorandum Opinion 1

On August 23, 2018, Robert Goodman (“Employee”) sustained an electrical shock
while installing cable at a customer’s property for Bellsouth Telecommunications, LLC
(“Employer”). Employer accepted Employee’s claim as compensable and provided
workers’ compensation benefits. Approximately two months after the work incident,
Employee began treating with Dr. Jack Scariano, a neurologist he selected from an
Employer-provided panel of physicians, who testified in his March 2022 deposition that
Employee reported having been electrocuted and briefly losing consciousness. 2 Employee
complained of neurological problems, difficulty walking and using his right arm,
headaches, and memory problems following the work incident, as well as ringing in his
ears (also known as tinnitus), generalized weakness with cramps, and double vision.

In February 2019, at Employer’s request, Employee underwent an examination with
Dr. Clifford Johnson, an ear, nose, and throat specialist. Dr. Johnson opined, in relevant
part, that

the electrical shock that [Employee] suffered did damage his right ear, which
would account for the tinnitus that he is feeling and can contribute to the high
frequency loss. There may have been some preexisting noise exposure, but
I think that the most recent accident has accounted for the majority of his
loss. This is a permanent loss.

Dr. Johnson assigned a combined 3% anatomical impairment to the whole body for
Employee’s hearing loss and tinnitus “since [Employee’s] tinnitus is his most concerning
problem.”

Dr. Scariano’s May 16, 2019 office note indicated he completed paperwork
regarding work restrictions, prescribed gabapentin, and placed Employee at maximum
medical improvement with a 10% anatomical impairment. Dr. Scariano noted that
Employee would need continued medical care and scheduled a follow up visit for four
months later. That same day, Dr. Scariano also completed a Form C-30A Final Medical
Report and assigned a 3% anatomical impairment, indicating Employee would need future
medical treatment for his injury, including follow up with a “neuro and ENT.” 3
1
“The appeals board may, in an effort to secure a just and speedy determination of matters on appeal and
with the concurrence of all judges, decide an appeal by an abbreviated order or by memorandum opinion,
whichever the appeals board deems appropriate, in cases that are not legally and/or factually novel or
complex.” Tenn. Comp. R. & Regs. 0800-02-22-.03(1) (2020).
2
No medical records were entered into evidence, so we have gleaned the course of Employee’s treatment
from the documents in the technical record and their attachments.
3
In response to a subsequent questionnaire sent by Employer, Dr. Scariano indicated Employee would
retain a 3% impairment to the body as a whole “for his headaches arising from his work related injury from
2
In March 2020, Employee returned to Dr. Scariano after having additional testing
performed. Employee complained of “brain fog sometimes” and “difficulty processing and
making simple decisions.” Employee indicated he “constantly” had headaches and noted
issues with focusing, fine motor detailing work, bouts of dizziness impacting his ability to
walk, and a loss of control over his right hand. Dr. Scariano noted that Employee’s test
results suggested a “global deficit in auditory processing ability” and recommended a “full
neuropsychological impairment and formal work capacity test in order to understand what
[Employee’s] residual impairments are for an impairment rating.” He referred Employee
for neuropsychological testing and ordered vestibular therapy for his dizziness.

Subsequently, on January 25, 2021, Employee returned to Dr. Scariano for a follow-
up visit and indicated he was “doing the same as his last visit.” Dr. Scariano evaluated
Employee’s vision and noticed a possible fourth cranial nerve or minor sixth nerve palsy
in his right eye, noting “[t]his is common after a [traumatic brain injury].” Dr. Scariano
reiterated his request for a work capacity test to be performed and recommended a follow
up visit with Employee in two months.

On this same date, Dr. Scariano drafted a letter to Employer explaining that in March
2019, he had “recommended further evaluation” before assigning any further impairment
rating. He noted Employee had undergone a full psychological evaluation at the Shepherd
Center in Atlanta, Georgia, although the “psychological testing was done over a year and
a half after I had recommended it.” Moreover, he noted that “[t]he Shepherd Center has
recommended speech therapy and psychotherapy which have been ordered but [have] not
been seen to fruition.” Dr. Scariano further noted Employee was undergoing a “downward
spiral” and assigned a new impairment rating of 11% to the whole body. Dr. Scariano
indicated he agreed with the Shepherd Center’s recommendation for Employee to see
speech and psychological therapists, and again recommended Employee undergo a work
capacity test. In addition, Dr. Scariano recommended that a neuro-ophthalmologist
evaluate Employee for diplopia.

On August 9, 2021, Employee returned to Dr. Scariano with continued complaints
of dizziness, headaches, brain fog, and muscle spasms. Dr. Scariano again placed
Employee at maximum medical improvement with the recommendation for future medical
care, noting that he did not see Employee’s condition improving. Approximately one week
later, Dr. Scariano submitted another letter to Employer, noting he was treating Employee
for “underlying neurological deficits secondary to his work comp injury.” Dr. Scariano
informed Employer that Employee had objective testing performed “which correlates well
to neurological problems from his injury” and acknowledged he had previously assigned
an impairment rating for Employee. Dr. Scariano noted Employee was having more
difficulty with aphasia, speech problems, and vertigo, and would benefit from speech

[a] neurological standpoint.” The record is unclear regarding why there is a discrepancy between the May
16 office note assigning a 10% impairment and the May 16 Form C-30A assigning a 3% impairment.
3
therapy, stating, “I have tried endlessly to get him approved for various treatments and this
among various others have not been authorized.” With regard to Employee’s impairment
rating, Dr. Scariano stated:

[Employee’s] previous impairment . . . was 11% to the body as a whole. Due
to his underlying aphasia that has manifested now which has been
documented throughout his care, he would have a class 1 aphasia as per table
13-9. This would be a 10% impairment rating to the body [as] a whole.
Using the combination table, 10% and 11% impairment would be equal to
17% to the body as a whole. Needed testing and treatment for neurological
symptoms with objective evidence have been repeatedly denied and without
treatment, I suspect that his overall impairment is going to increase . . . .

Dr. Scariano completed another Form C-30A Final Medical Report, affirming his new
impairment rating of 17% and noting Employee would need future medical treatment for
his work injury.

In September 2021, Employer scheduled a second employer’s examination for
Employee with Dr. J. Sidney Alexander, a neuropsychiatrist, for November 2021. Upon
receiving notification of the appointment, Employee advised he was not willing to attend
a second examination since he “already submitted to one IME performed by Dr. Clifford
Johnson in February 2019.” 4

The parties attended a scheduling hearing on April 21, 2022, nearly one month after
taking Dr. Scariano’s deposition on March 25. At the hearing, the parties agreed to the
relevant deadlines as set by the court and to a compensation hearing scheduled for June 1,
2022. Thereafter, on May 4, Employer filed a motion to compel a medical examination
with Dr. Alexander and a separate motion to continue the compensation hearing. In
considering Employer’s motions, the trial court noted Employer knew in September 2021
that it wanted to schedule an examination with Dr. Alexander but waited until after the
April 21, 2022 scheduling hearing and after a trial date had been set to file its motion
seeking to compel Employee to attend the examination. The court denied Employer’s
motion to continue, concluding good cause did not exist for a continuance of the case. The
trial court did not rule on Employer’s motion to compel Employee’s attendance at an
examination with Dr. Alexander. Employer has appealed.

4
On October 26, 2021, then-counsel for Employee filed a motion to withdraw and an agreed motion to set
aside the scheduling order. On October 28, the trial court granted the parties’ motion to set aside the
scheduling order and, on November 4, granted then-counsel’s motion to withdraw. Thereafter, on
November 11, Employee’s current counsel filed a notice of appearance. Employer again raised the issue
of a second employer’s examination with Dr. Alexander to Employee, and he again declined to attend the
appointment.
4
In its notice of appeal, Employer identifies the issue as whether the trial court erred
in denying Employer’s motion to compel and for a continuance. However, in its brief,
Employer identifies the issue as whether the trial court erred in denying its motion to
compel a medical examination, discussing a continuance of the compensation hearing only
within the context of obtaining an employer’s examination. Employer neither identified
the court’s denial of the motion to continue as an issue on appeal nor did it address the trial
court’s denial of its motion in the argument section of its brief. Accordingly, we treat the
issue concerning whether the trial court abused its discretion in denying the motion for a
continuance as having been waived by Employer. See Moore & Seiferth v. Ingles Markets,
Inc., No. 2015-02-0193, 2015 TN Wrk. Comp. App. Bd. LEXIS 54, at *4 (Tenn. Workers’
Comp. App. Bd. Nov. 4, 2015).

Moreover, in its brief on appeal, Employer asserts the trial court erred by denying
its motion to compel an employer’s examination and “ignored Employer’s statutory right
to have the Employee examined by a physician of [its] choosing.” Employer further
contends that its request for Employee to undergo an employer’s examination was
reasonable and that the trial court’s denial of its motion “goes against the principles of
equity and fairness.” Conversely, Employee argues Employer’s request for an examination
was unreasonable, noting that Employee already submitted to an examination performed
by Dr. Clifford Johnson. Employee emphasizes this would be a second examination of
Employee and contends the language of Tennessee Code Annotated section 50-6-204(d)(1)
and Rule 35.01 of the Tennessee Rules of Civil Procedure do not provide for or contemplate
multiple such examinations. 5

We first note that the plain language of the trial court’s May 17, 2022 order was
limited to a denial of Employer’s motion to continue the scheduled compensation hearing.
While the court discussed both the motion to compel and the motion to continue, it
ultimately ruled only on the motion to continue. The trial court denied Employer’s motion
to continue, ruling that “the Compensation Hearing will proceed as scheduled.” Further,
the court noted that “good cause does not exist for a continuance of the case.” Based upon
our review of the record, we conclude the preponderance of the evidence supports the trial
court’s conclusion. Employer knew months before the scheduling hearing that it wished
to obtain a second employer’s examination, yet it agreed to the various deadlines, including
the date of the compensation hearing, at the scheduling hearing. Employer did not show
good cause to support its motion for a continuance of the compensation hearing, and we
conclude the trial court did not abuse its discretion in denying Employer’s motion.

Moreover, pursuant to Tenn. Comp. R. and Regs. 0800-02-22-.09(4), we find
Employer’s appeal to be frivolous. A frivolous appeal is one that is devoid of merit or
5
The record reflects that Dr. Johnson is an ear, nose, and throat specialist, while Dr. Alexander is a
neuropsychiatrist. Given our resolution of this appeal, we need not address whether it would be reasonable
for an employer to request medical examinations with different specialists to address different aspects of
an employee’s claim under Tennessee Code Annotated section 50-6-204(d)(1).
5
brought solely for delay. Yarbrough v. Protective Servs. Co., Inc., No. 2015-08-0574, 2016
TN Wrk. Comp. App. Bd. LEXIS 3, at *11 (Tenn. Workers’ Comp. App. Bd. Jan. 25,
2016); see also Burnette v. WestRock, No. 2016-01-0670, 2017 TN Wrk. Comp. App. Bd.
LEXIS 66, at *15 (Tenn. Workers’ Comp. App. Bd. Oct. 31, 2017) (“Stated another way,
a frivolous appeal is one that . . . had no reasonable chance of succeeding.”). Litigants
“should not be required to endure the hassle and expense of baseless litigation. Nor should
appellate courts be required to waste time and resources on appeals that have no realistic
chance of success.” Yarbrough, 2016 TN Wrk. Comp. App. Bd. LEXIS 3, at *10-11
(internal citations omitted). As Employer did not address the trial court’s denial of the
motion for continuance in its brief, which is the only motion upon which the trial court had
ruled, Employer waived the only appealable issue and had no reasonable chance of
succeeding on appeal. Thus, the appeal served only to delay the previously scheduled
compensation hearing. We remand the case for the trial court to award Employee
attorneys’ fees and costs associated with the frivolous appeal.

For the reasons set out above, we affirm the trial court’s denial of Employer’s
motion for a continuance, and we find the appeal frivolous. We remand the case for the
trial court to determine an appropriate award of attorneys’ fees and costs associated with
the frivolous appeal. Costs on appeal are taxed to Employer.

6
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Robert Goodman ) Docket No. 2019-01-0820
)
v. ) State File No. 64335-2018
)
Bellsouth Telecommunications, LLC, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Audrey A. Headrick, Judge )

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced
case was sent to the following recipients by the following methods of service on this the 28th day
of July, 2022.

Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
W. Troy Hart X wth@mijs.com
Matthew B. Morris mbmorris@mijs.com
Jeffrey W. Rufolo X jrufolo@summersfirm.com
Audrey A. Headrick, Judge X Via Electronic Mail
Kenneth M. Switzer, Chief Judge X Via Electronic Mail
Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov
Workers’ Compensation Claims

Matthew Keene
Acting Deputy Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-532-1564
Electronic Mail: WCAppeals.Clerk@tn.gov