Basham, Alexis v. SPB Hospitality, LLC, d/b/a Logan's Roadhouse

FILED
Nov 02, 2023
12:25 PM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Alexis Basham ) Docket No. 2023-05-0474
)
v. ) State File No. 50877-2021
)
SPB Hospitality, LLC, d/b/a Logan’s )
Roadhouse, et al. )
)
)
Appeal from the Court of Workers’ ) Heard October 5, 2023
Compensation Claims ) at Knoxville
Dale A. Tipps, Judge )

Affirmed and Remanded

This is an appeal of the trial court’s order denying the employee’s motion to compel
compliance with an earlier order for ongoing temporary disability benefits. While at work,
the employee was physically assaulted by a customer who then struck the employee with
a vehicle and dragged her several feet when attempting to leave the employer’s parking lot.
The employee suffered an injury to her back and received workers’ compensation benefits.
Upon reaching maximum medical improvement for her back injury, the employer stopped
paying temporary disability benefits. Thereafter, the employer authorized a psychiatric
evaluation, and the employee was diagnosed with post-traumatic stress disorder and
restricted from work. The employee requested an expedited hearing to reinstate temporary
total disability benefits, and the trial court determined that although the employee suffered
physical injuries, her mental injury did not arise primarily from the physical injuries,
rendering Tennessee Code Annotated section 50-6-207(1)(E) inapplicable. Accordingly,
the court ordered the employer to pay past and ongoing temporary total disability benefits,
and that order was not appealed. Subsequently, 104 weeks after the accident, the employer
ceased payment of temporary benefits pursuant to Tennessee Code Annotated section 50-
6-207(1)(D)(ii), which limits such benefits to a maximum of 104 weeks “after the date of
injury” for mental injuries “where there is no underlying physical injury.” The employee
filed a motion to compel the employer’s compliance with the prior order, asserting she was
entitled to continuing temporary benefits. The employer argued that the employee was
conclusively presumed to be at maximum medical improvement pursuant to the applicable
statute. In a decision on the record, the trial court denied the employee’s motion, and the
employee has appealed. Upon careful consideration of the record and arguments of
counsel, we affirm the trial court’s order and remand the case.

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

Michael P. Fisher, Nashville, Tennessee, for the appellant, Alexis Basham

Taylor R. Pruitt, Nashville, Tennessee, for the appellee, SPB Hospitality, LLC, d/b/a
Logan’s Roadhouse

Factual and Procedural Background

Alexis Basham (“Employee”) was working as a manager for SPB Hospitality, LLC,
d/b/a Logan’s Roadhouse (“Employer”) when she was physically assaulted by customers
on June 28, 2021. The assailants pulled Employee’s necklace off, punched her in the face,
scratched her, and pushed her outside of the restaurant. Then, in an attempt to flee the
scene, the assailants backed into Employee with their vehicle. Upon realizing the parking
lot had just one exit, the assailants turned their vehicle around and struck Employee again,
dragging her several feet before Employee eventually fell against the curb, striking her
head and back. She was transported by ambulance to a hospital emergency room where
she received treatment for her injuries, including a head wound and abrasions, before being
discharged.

Thereafter, Employee began experiencing back symptoms and Employer provided
a panel of orthopedic physicians from which she selected Dr. James Wiesman. Dr.
Wiesman then referred Employee to a neurosurgeon, and she selected Dr. George Lien
from a panel of specialists. Employee eventually underwent lumbar surgery and was
released at maximum medical improvement (“MMI”) on August 15, 2022. Upon Dr.
Lien’s placing Employee at maximum medical improvement, Employer terminated
temporary total disability benefits.

During this time, Employee, who had a prior history of anxiety and depression,
treated on her own with her mental health provider for complaints of increased fear and
anxiety she believed arose from the work-related assault. 1 Employee subsequently
requested a panel of physicians for her alleged mental injury. Employer authorized a
psychiatric evaluation with Dr. Greg Kyser, who diagnosed Employee with post-traumatic
stress disorder (“PTSD”) and restricted her from work “until further notice.”

Employee filed a request for an expedited hearing seeking additional temporary
disability benefits and submitted an affidavit in which she contended that her psychological
injury arose “from the attack itself and not the physical injury sustained.” At the expedited

1
Employee asserted that although she was provided panels of orthopedic and neurosurgical physicians, she
did not originally receive a panel of specialists for her alleged mental injury. Instead, she claimed she was
advised by a nurse case manager to seek treatment on her own for her alleged mental injury.

2
hearing, Employee asserted she was able to perform daily life activities prior to this
incident but was now unable to work because of her increased fear and anxiety. She also
argued that she was also entitled to temporary disability benefits based on the work
restrictions assigned by her authorized psychiatrist, Dr. Kyser.

Conversely, Employer argued that Employee was not entitled to any additional
temporary disability benefits because she had reached MMI for her physical injury and
temporary benefits were properly terminated pursuant to Tennessee Code Annotated
section 50-6-207(1)(E), which states that an employee is conclusively presumed to have
reached MMI “when the treating physician ends all active medical treatment and the only
care provided is for a mental injury that arose primarily out of a compensable physical
injury.” Tenn. Code Ann. § 50-6-207(1)(E) (emphasis added). Thus, the issue before the
court was how to apply section 50-6-207(1)(E) when the compensable incident caused both
physical injuries and a mental injury arising from a sudden or unusual stimulus.
Ultimately, the court concluded that subsection 207(1)(E) does not apply to a mental injury
occurring contemporaneously with, but not arising primarily out of, a physical injury. The
trial court reasoned that although Employee sustained physical injuries as a result of the
work accident, she also sustained a separate mental injury arising from the same event and,
thus, Employee was entitled to additional temporary total disability benefits based on the
work restrictions of Dr. Kyser. That order was not appealed.

In June 2023, 104 weeks after the date of injury, Employer ceased payments of
temporary disability benefits to Employee despite the court’s earlier order. Thereafter, on
July 11, Employee filed a motion to compel compliance with the May 11, 2023 expedited
hearing order and for sanctions. In response, Employer asserted it properly terminated
Employee’s temporary benefits pursuant to Tennessee Code Annotated section 50-6-
207(1)(D), which provides:

An employee claiming a mental injury . . . shall be conclusively presumed to
be at maximum medical improvement upon the earliest occurrence of the
following:

(i) At the time the treating psychiatrist concludes the employee
has reached maximum medical improvement; or

(ii) One hundred four (104) weeks after the date of injury in the
case of mental injuries where there is no underlying physical
injury.

In her reply brief, Employee argued that section 50-6-207(1)(D)(ii) is inapplicable
in this case because there was an “underlying physical injury” accompanying her mental
injury. In Employee’s view, the statute’s use of the term “underlying” in this subsection
must necessarily mean something different than the phrase “arising primarily out of” as

3
used in subsection 207(1)(E). Thus, Employee argued she was not precluded from
receiving additional temporary disability benefits in the first instance because her mental
injury did not “arise primarily out of” her physical injury, and she is not precluded from
receiving additional benefits in the second instance because she suffered an “underlying
physical injury” in additional to her mental injury.

After considering the arguments of both parties, the trial court concluded the natural
and ordinary meaning of the word “underlying” as used in section 50-6-207(1)(D) is “a
cause or foundation of something else.” Here, because it had earlier concluded that
Employee’s mental injury did not “arise primarily out of” the physical injury, it determined
it would be incongruous to find that Employee’s back injury constituted an “underlying
physical injury.” Thus, the court concluded Employee is subject to the conclusive
presumption of MMI as set out in 50-6-207(1)(D)(ii) and denied Employee’s motion to
compel. Employee has appealed.

Standard of Review

The standard we apply in reviewing the trial court’s decision presumes that the
court’s factual findings are correct unless the preponderance of the evidence is otherwise.
See Tenn. Code Ann. § 50-6-239(c)(7) (2022). However, we need not give deference to a
trial court’s findings “based upon documentary evidence such as depositions.” Goodman
v. Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at *6 (Tenn.
Workers’ Comp. Panel Jan. 18, 2018). The interpretation and application of statutes and
regulations are questions of law that are reviewed de novo with no presumption of
correctness afforded the trial court’s conclusions. See Mansell v. Bridgestone Firestone N.
Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are also mindful of our obligation
to construe the workers’ compensation statutes “fairly, impartially, and in accordance with
basic principles of statutory construction” and in a way that does not favor either the
employee or the employer. Tenn. Code Ann. § 50-6-116 (2022).

Analysis

Tennessee Code Annotated section 50-6-102(15) defines a compensable mental
injury as

a loss of mental faculties or a mental or behavioral disorder, arising primarily
out of a compensable physical injury or an identifiable work[-]related event
resulting in a sudden or unusual stimulus, and shall not include a
psychological or psychiatric response due to the loss of employment or
employment opportunities[.]

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Thus, there are two categories of compensable mental injuries: (1) those arising primarily
out of a compensable physical injury; and (2) those arising primarily out of an identifiable
incident causing a sudden or unusual stimulus.

The Workers’ Compensation Law includes several conclusive presumptions
impacting an injured worker’s entitlement to temporary disability benefits. Pursuant to
Tennessee Code Annotated section 50-6-207(1)(D), an employee claiming a mental injury
on or after July 1, 2009, is conclusively presumed to be at maximum medical improvement
upon the earliest occurrence of either the treating psychiatrist’s concluding the employee
has reached maximum medical improvement or 104 weeks after the date of injury “where
there is no underlying physical injury.” Section 50-6-207(1)(E) states, in relevant part, that

[a]n employee claiming an injury as defined in § 50-6-102, when the date of
injury is on or after July 1, 2014, shall be conclusively presumed to be at
maximum medical improvement when the treating physician ends all active
medical treatment and the only care provided is for the treatment of pain or
for a mental injury that arose primarily out of a compensable injury.

(Emphasis added.) Hence, if the mental injury occurred as the result of a work-related
stimulus independent of any physical injury, subsection 207(1)(D)(ii) creates a conclusive
presumption of MMI, but if the mental injury arose primarily from a compensable physical
injury, then subsection 207(1)(E) creates a conclusive presumption of MMI.

In the present case, Employee asserts the trial court erred by denying her request for
continuing temporary disability benefits after concluding that Employee was conclusively
presumed to be at MMI pursuant to Tennessee Code Annotated section 50-6-207(1)(D)(ii).
Specifically, during oral argument, Employee asserted that subsection 207(1)(D)(ii) is
inapplicable because Employee’s physical injuries “accompanied and contributed” to her
mental injuries and constitute an underlying physical injury.2 In support of her position,
Employee relies on an earlier decision of the Court of Workers’ Compensation Claims in
Benson v. Jones Bros. Contractors LLC, No. 2021-08-0148, 2022 TN Wrk. Comp. LEXIS
14, at *4 (Tenn. Ct. Wrk. Comp. Claims Feb. 22, 2022). There, the trial court concluded
that the existence of an underlying physical injury rendered section 50-6-207(1)(D)(ii)
inapplicable. In essence, Employee asserts the trial court in the present case “broadened
the statute in holding that ‘the physical injury must be the primary cause of the mental
injury to negate section 50-6-207(1)(D)(ii).’”

In its brief on appeal, Employer contends the trial court was correct in denying
Employee’s motion, noting that Employee previously took the position at the expedited
hearing that her physical injuries were not causally related to her mental injury and that she

2
For purposes of this appeal, it is undisputed that Employee sustained both physical and mental injuries as
a result of the work-related assault.

5
would still be suffering from PTSD even if she had sustained no physical injuries in the
work incident. 3 Yet, she is now taking the position that there is an “underlying” physical
injury that makes subsection 207(1)(D) inapplicable. Employer further asserts the word
“underlying” as used in section 50-6-207(1)(D)(ii) is unambiguous and “refers to
causation.” Moreover, Employer argues that a reasonable definition derived from the plain
and ordinary language of the word “underlying” is the “cause or basis of something else.”
Thus, if the mental injury was not caused by the physical injuries, then subsection
207(1)(D)(ii) limits Employee’s temporary benefits to a maximum of 104 weeks after the
date of injury.

Employer further contends that Employee’s proposed interpretation of section 50-
6-207(1)(D)(ii) would result in an unjust and unequal application of the Workers’
Compensation Law. For example, in cases where the injured employee’s mental injury
occurred contemporaneously with, but was not causally related to, the physical injury, that
employee would be limited to a maximum of 104 weeks of temporary disability benefits.
However, an employee with a mental injury who is deemed to have an “underlying”
physical injury (but one which was not the “primary” cause of the mental injury) could
receive temporary disability benefits for an undefined period of time greater than 104
weeks. In Employer’s view, such a result would be illogical and contrary to the
legislature’s intent.

In addition, Employer notes this interpretation would effectively change the
meaning of section 207(1)(D)(i) because it would add a third category of mental injury
cases not addressed by the two options listed in subsection 207(1)(D). In other words, in
all cases where an employee alleges a mental injury, subsection 207(1)(D) provides a
conclusive presumption of MMI at the earlier of two defined events, but Employee’s
interpretation would create a third category of mental injury cases not addressed by either
of those two possibilities. Finally, Employer asserts the trial court was correct in its
analysis of section 207(1)(D)(ii) within the framework of the statute as written and in
consideration of the legislative intent of the statute as a whole, which was to impose a cap
on an employee’s receipt of temporary disability benefits for a mental injury.

In addressing the principles of statutory construction, the Tennessee Supreme Court
has provided the following guidance:

The primary goal of statutory interpretation is to carry out legislative intent
without expanding or restricting the intended scope of the statute. In
determining legislative intent, we first must look to the text of the statute and
give the words of the statute “their natural and ordinary meaning in the
context in which they appear and in light of the statute’s general purpose.”

3
Employee testified that her mental injury arose “from the attack itself and not the physical injury
sustained.”

6
When a statute’s language is clear and unambiguous, we enforce the statute
as written; we need not consider other sources of information. We apply the
plain meaning of a statute’s words in normal and accepted usage without a
forced interpretation. We do not alter or amend statutes or substitute our
policy judgment for that of the Legislature.

Coleman v. Olson, 551 S.W.3d 686, 694 (Tenn. 2018) (internal citations omitted). In
addition, the Supreme Court has explained:

In construing legislative enactments, we presume that every word in a statute
has meaning and purpose and should be given full effect if the obvious
intention of the General Assembly is not violated by doing so. . . . It is only
when a statute is ambiguous that we may reference the broader statutory
scheme, the history of the legislation, or other sources. Further, the language
of a statute cannot be considered in a vacuum, but “should be construed, if
practicable, so that its component parts are consistent and reasonable.” Any
interpretation of the statute that “would render one section of the act
repugnant to another” should be avoided. We also must presume that the
General Assembly was aware of any prior enactments at the time the
legislation passed.

In re Estate of Tanner, 295 S.W.3d 610, 613-14 (Tenn. 2009) (internal citations omitted).
In applying these principles, we have explained previously that “we must construe a statute
so that no part will be inoperative, superfluous, void, or insignificant. We are required to
give effect to every word, phrase, clause, and sentence of the act in order to achieve the
Legislature’s intent and we must construe a statute so that no section will destroy another.”
Thompson v. Comcast Corp., No. 2017-05-0639, 2018 TN Wrk. Comp. App. Bd. LEXIS
1, at *25 (Tenn. Workers’ Comp. App. Bd. Jan. 30, 2018) (emphasis added) (internal
citations omitted).

Here, the plain language of the section 50-6-207(D)(1) provides that in all cases
where an employee alleges a mental injury, the earliest occurrence of two defined events
triggers a conclusive presumption of MMI. The first possibility is when the treating
psychiatrist places the employee at MMI. Here, there is no evidence in the record that
Employee has been placed at MMI by Dr. Kyser; accordingly, subsection 207(D)(1)(i) does
not apply. The second possibility is the expiration of 104 weeks after the date of injury
when there is no underlying physical injury. The question then becomes: what constitutes
an “underlying” physical injury?

During oral argument, Employee’s counsel first argued that “underlying,” within
the context of this section, simply means “accompanying.” Employee’s counsel later
acknowledged, however, that the term may include some degree of contribution by the
physical injury to the mental injury, although not to the extent that the mental injury arose

7
primarily from the physical injury. Conversely, Employer maintains that “underlying”
refers to causation, not merely a temporal connection. Thus, in Employer’s view, if a
mental injury is independent of any physical injury, then subsection 207(1)(D) defines
when MMI occurs. However, if the mental injury arose later due to the effects of the
physical injury, subsection 207(1)(E) defines when MMI occurs.

In its order, the trial court concluded that “[c]onsideration of the legislative intent
behind section 207(1)(D)(ii) is unnecessary because the provision is not ambiguous.” The
court further noted that the natural and ordinary meaning of “underlying” is “a cause or
foundation of something else” and “[h]ad the legislature wished to exclude mental injuries
occurring concurrently or incidentally with physical injuries, it could have said so.”

We conclude Employee’s proposed interpretation of these statutory provisions is
untenable. Employee asks us, in essence, to recognize a category of mental injury cases
not addressed by the General Assembly and declare there is no conclusive presumption of
MMI for that one category of mental injuries, even when all other mental injury cases are
subject to a conclusive presumption of MMI. This we decline to do. In considering
Employee’s motion, the trial court properly considered the text of the statute to determine
the natural and ordinary meaning of the word “underlying” within the context in which it
appeared and in light of the statute’s general purpose. After doing so, the court concluded
this language is clear and unambiguous. If, as in the present case, an employee suffers a
mental injury arising primarily from a work-related incident and independent of any
physical injury, subsection 207(1)(D) governs when MMI occurs as the earliest of two
defined events. If, on the other hand, the mental injury arose primarily from the effects of
the physical injury, subsection 207(1)(E) defines when MMI occurs. Thus, we discern no
error in the trial court’s interpretation of this statutory language and in its order denying
Employee’s motion to compel the payment of additional temporary disability benefits.

Conclusion

Accordingly, we affirm the order of the trial court and remand the case. Costs on
appeal are taxed to Employee.

8
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Alexis Basham ) Docket No. 2023-05-0474
)
v. ) State File No. 50877-2021
)
SPB Hospitality, LLC, d/b/a Logan’s )
Roadhouse, et al. )
)
)
Appeal from the Court of Workers’ ) Heard October 5, 2023
Compensation Claims ) at Knoxville
Dale A. Tipps, 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 2nd day
of November, 2023.

Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Michael P. Fisher X michael@rockylawfirm.com
gina@rockylawfirm.com
Taylor R. Pruitt X trp@feeneymurray.com
catherynelgrant@feeneymurray.com
Dale A. Tipps, 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

Olivia Yearwood
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov