             TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                WORKERS’ COMPENSATION APPEALS BOARD

Sarah Love                                    )   Docket No. 2015-07-0195
                                              )
v.                                            )    State File No. 55816-2015
                                              )
Delta Faucet Company, et al.                  )
                                              )
                                              )
Appeal from the Court of Workers’             )
Compensation Claims                           )
Allen Phillips, Judge                         )


                    Affirmed and Remanded – Filed April 30, 2018

In this second interlocutory appeal of this case, the employer challenges the trial court’s
decision to grant a continuance. The employee filed a motion asserting she needed more
time to, among other things, depose a medical expert. The trial court granted the motion
and extended previously set discovery deadlines, along with the trial date. The employer
has appealed, contending that the trial court abused its discretion in granting the
continuance. The employee maintains the appeal should be dismissed because an order
that does not address disability or medical benefits is not appealable. We hold that this
appeal is properly before us and that the trial court did not abuse its discretion in granting
a continuance. The trial court’s decision is affirmed and the case is remanded.

Presiding Judge Marshall L. Davidson, III, delivered the opinion of the Appeals Board in
which Judge Timothy W. Conner, and Judge David F. Hensley joined.

Hailey H. David, Jackson, Tennessee, for the employer-appellant, Delta Faucet Company

Julie A. Reasonover, Nashville, Tennessee, for the employee-appellee, Sarah Love

                          Factual and Procedural Background

       This case was before us some eighteen months ago when Delta Faucet Company
(“Employer”) challenged the trial court’s award of medical and temporary disability
benefits to Sarah Love (“Employee”) pending a trial. See Love v. Delta Faucet Co., No.
2015-07-0195, 2016 TN Wrk. Comp. App. Bd. LEXIS 45 (Tenn. Workers’ Comp. App.
Bd. Sept. 19, 2016). We affirmed the trial court’s initiation of benefits. Two years and

                                              1
two appeals after this claim was filed, the parties are still wrangling over discovery.
Against that backdrop, we relate only the circumstances necessary to resolve this appeal.

       Employee was working for Employer when she alleged an injury to her right
shoulder as a result of lifting a tray of parts at work. The trial court entered a scheduling
order setting deadlines for discovery and medical proof, as well as a mediation cut-off
date of September 1, 2017. The parties scheduled their mediation for August 21, 2017.

      On June 30, 2017, the trial court entered an order allowing Employee’s counsel to
withdraw, and Employee proceeded for a time in a self-represented capacity. On August
16, 2017, the trial court, in response to Employee’s motion, entered an order continuing
the August 21, 2017 mediation and encouraged Employee to seek new counsel.

       Following a status hearing, the trial court entered a modified scheduling order
extending the deadline to take medical proof to January 5, 2018, and scheduling the trial
for February 6, 2018. The trial court entered a second amended scheduling order setting
post-discovery mediation for January 18, 2018.

       In the interim, Employee retained new counsel and, upon counsel’s request on
January 17, 2018, the trial court rescheduled mediation from January 18, 2018 to
February 1, 2018. On January 18, 2018, Employee filed a “Motion to Continue
Compensation Hearing Date, Lay Witness and Expert Witness Deadlines.” As grounds
for the motion, Employee asserted that she was unaware of the scheduling order
deadlines, that depositions of a medical expert and lay witnesses were necessary, and that
she needed to determine why the authorized physician assigned a permanent impairment
rating more than six months before Employee reached maximum medical improvement.
The trial court directed the parties to proceed with the February 1 mediation and advised
them it would address the merits of the motion to continue should mediation prove
unsuccessful.

        The parties were unable to resolve the case at mediation and, on February 5, 2018,
the trial court granted Employee’s motion to continue. Employer has appealed.

                                   Standard of Review

       A trial court’s decision to grant or deny a request for a continuance is reviewed
under an abuse of discretion standard. See, e.g., Liberty Mut. Ins. Co. v. Friendship
Home Health Agency, LLC, No. M2007-02787-COA-R3-CV, 2009 Tenn. App. LEXIS
262, at *8 (Tenn. Ct. App. Mar. 19, 2009). An appellate court may “find an abuse of
discretion only if the [trial] court ‘applied incorrect legal standards, reached an illogical
conclusion, based its decision on a clearly erroneous assessment of the evidence, or
employ[ed] reasoning that causes an injustice to the complaining party.’” Wright ex rel.
Wright v. Wright, 337 S.W.3d 166, 176 (Tenn. 2011). In reviewing a trial court’s

                                             2
exercise of discretion, we presume the trial court was correct and consider the evidence in
a light most favorable to upholding the decision. Lovlace v. Copley, 418 S.W.3d 1, 16-17
(Tenn. 2013). “[W]e will not substitute our judgment for that of the trial court merely
because we might have chosen another alternative.” Johnson v. Walmart Assocs., Inc.,
No. 2014-06-0069, 2015 TN Wrk. Comp. App. Bd. LEXIS 18, at *17 (Tenn. Workers’
Comp. App. Bd. July 2, 2015). That said, such decisions “require a conscientious
judgment, consistent with the facts, that takes into account the applicable law.” White v.
Beeks, 469 S.W.3d 517, 527 (Tenn. 2015).

                                             Analysis

                                   Subject Matter Jurisdiction

       As an initial matter, we address Employee’s assertion that the trial court’s decision
to grant a continuance is not appealable and, therefore, this appeal should be dismissed
for lack of subject matter jurisdiction. The premise of Employee’s argument is that an
order resolving a motion to continue is not an interlocutory order denying temporary
disability or medical benefits as defined by Tenn. Comp. R. & Regs. 0800-02-21-.02(15)
(2016) and, as such, the order is not appealable. 1 We disagree that such an order is not
appealable.

       It is well-established that questions regarding a court’s subject matter jurisdiction
address the court’s “lawful authority to adjudicate a controversy brought before it . . .
and, therefore, should be viewed as a threshold inquiry.” Redwing v. Catholic Bishop for
the Diocese of Memphis, 363 S.W.3d 436, 445 (Tenn. 2012). A court derives its subject
matter jurisdiction from the Tennessee Constitution or from statutes, Staats v. McKinnon,
206 S.W.3d 532, 542 (Tenn. Ct. App. 2006), as opposed to conduct or agreement of the
parties, Shelby County v. City of Memphis, 365 S.W.2d 291, 292 (Tenn. 1963). In the
absence of subject matter jurisdiction, orders entered by a court are invalid and
unenforceable. Suntrust Bank v. Johnson, 46 S.W.3d 216, 221 (Tenn. Ct. App. 2000).

       Mindful of these principles, we turn to the pertinent statutes. The 2013 Workers’
Compensation Reform Act fundamentally altered the manner in which cases involving
work-related injuries are resolved, such as divesting the state’s traditional trial courts of
jurisdiction and creating new courts to resolve workers’ compensation disputes. The
Reform Act also introduced less visible, but no less important, changes to the law. One
of those changes was to make pre-trial interlocutory orders appealable as of right. See
Tenn. Code Ann. § 50-6-217(a)(1)-(2)(A) (2017). Prior law permitted a party aggrieved
by an interlocutory order to seek a discretionary appeal under Rules 9 and 10 of the
1
  Tenn. Comp. R. & Regs. 0800-02-21-.02(15) provides that “[a]n interlocutory order is an order by a
workers’ compensation judge that awards or denies temporary disability or medical benefits following a
review of the submitted material, or a hearing if one is convened at the discretion of the workers’
compensation judge, as a result of a motion for expedited hearing.”
                                                  3
Tennessee Rules of Appellate Procedure, but it was up to the appellate court to determine
whether to grant review. By contrast, current law provides no mechanism for an appeal
to this Board other than an appeal as of right. See Tenn. Code Ann. § 50-6-217; see also
Tenn. Comp. R. & Regs. 0800-02-22-.01(1) (2018) (“Any party may appeal any order of
a workers’ compensation judge by filing a notice of appeal.”). Thus, if an appeal is
properly perfected, we are compelled by statutory mandate to resolve it.

       An interlocutory order is one “that relates to some intermediate matter in the case”
and is “any order other than a final order.” Black’s Law Dictionary (10th ed. 2014). 2 In
a prior case, Yarbrough v. Protective Services Co., Inc., No. 2015-08-0574, 2016 TN
Wrk. Comp. App. Bd. LEXIS 3 (Tenn. Workers’ Comp. App. Bd. Jan. 25, 2016), we
addressed whether an interlocutory order that does not address disability or medical
benefits is a type of order that may be appealed. We held in the affirmative, explaining:

        The answer to this important question can be found in the plain language of
        Tennessee Code Annotated section 50-6-217(a)(1). That statute expressly
        vests this Board with the authority to “review interlocutory and final orders
        entered by workers’ compensation judges.” The statute contains no
        language either limiting the type of order a party may appeal, so long as the
        order is “interlocutory” or “final,” or purporting to limit the authority of
        this Board to resolve only certain types of appeals involving interlocutory
        and final orders.

Id. at *8-9. We also noted that, although the statute differentiates between review of
interlocutory orders in section 50-6-217(a)(2)(A) and the review of compensation orders
in section 50-6-217(a)(2)(B), none of these statutory provisions contains language
precluding review of certain types of orders. Id. at *9. Ultimately, we concluded in
Yarbrough that a party may appeal an interlocutory order other than one granting or
denying medical or disability benefits. Id. at *9-10. Indeed, Tenn. Comp. R. & Regs.
0800-02-22-.01(1) makes clear that a “party may appeal any order of a workers’
compensation judge by filing a notice of appeal.” (Emphasis added.). Accepting
Employee’s position that orders like the one involved here are beyond the purview of
appellate review would require us to read a limitation into section 50-6-217 that is not
there. This we cannot do. See Keen v. State, 398 S.W.3d 594, 604 (Tenn. 2012) (“The
Court will decline to ‘read in’ language into [a] statute that the General Assembly did not
place there.”).

      Accordingly, we conclude that this appeal is properly before us and decline to
dismiss it. See also Wright v. Cookeville Reg’l Med. Ctr., No. 2015-04-0181, 2017 TN

2
  By contrast, a final order or judgment is one that resolves all the issues in the case, leaving nothing else
for the trial court to do. Rucker v. Flexible Staffing Sols. of Tenn., No. 2015-02-0126, 2016 TN Wrk.
Comp. App. Bd. LEXIS 23 (Tenn. Workers’ Comp. App. Bd. May 13, 2016).
                                                      4
Wrk. Comp. App. Bd. LEXIS 19, at *6 (Tenn. Workers’ Comp. App. Bd. Mar. 8, 2017)
(appeal of an order challenging the grant of a motion to continue). However, before
leaving this issue, we reiterate “that today’s decision should not be viewed as license to
appeal pre-trial orders merely because that option exists,” as “parties should not be
required to endure the hassle and expense of baseless litigation.” Yarbrough, 2016 TN
Wrk. Comp. App. Bd. LEXIS 3, at *10. “Nor should appellate courts be required to
waste time and resources on appeals that have no realistic chance of success. Indeed,
appellate courts, including this one, are empowered to award damages against parties
whose appeals are frivolous or brought solely for delay.” Id. at *11; see also Tenn.
Comp. R. & Regs. 0800-02-22-.04(6).

                                         The Continuance

       Having determined that this appeal is properly before us, we turn to the merits of
Employer’s argument that the trial court abused its discretion in granting Employee’s
motion to extend the deadline for taking medical proof. Employer faults the trial court’s
decision to extend the deadline on two grounds: (1) the court made no finding of
extraordinary circumstances in granting the extension, and (2) Employee failed to show
extraordinary circumstances to warrant an extension of time. 3 We are not persuaded.

        The law is clear that trial courts have wide discretion when deciding whether to
grant or deny a motion for a continuance. Wright, 2017 TN Wrk. Comp. App. Bd.
LEXIS 19, at *6. In resolving such a motion, the court should consider: (1) the amount
of time the proceedings have been pending, (2) the reasons for the continuance, (3) the
diligence of the party seeking the continuance, and (4) the prejudice to the requesting
party if the continuance is not granted. Id. The law is also clear that appellate courts will
not second-guess a trial court’s decision on a motion to continue unless the record,
reviewed as a whole, shows an abuse of discretion. Id. The decision to grant or deny a
motion to continue is fact-specific, and such motions should be considered in the context
of the totality of the circumstances. Id.

      In prior cases, we have observed that a trial court has “discretion in controlling the
pace of litigation and in efficiently disposing of its cases.” Smith v. The Newman Grp.,
LLC, No. 2015-08-0075, 2015 TN Wrk. Comp. App. Bd. LEXIS 30, at *9 (Tenn.

3
  Tenn. Comp. R. & Regs. 0800-02-21-.16(5) (2016) provides, in pertinent part, that “[a]bsent
extraordinary circumstances to be determined at the discretion of the workers’ compensation judge, no
scheduled hearing may be continued to provide a party additional time to secure deposition testimony.”
(Emphasis added.) By contrast, a motion to continue a trial date must be supported by “good cause.” See
Tenn. Comp. R. & Regs. 0800-02-21-.13(4) (2016) (“[t]he date of the compensation hearing shall not be
modified without permission from the presiding judge based on a finding of good cause”). See also Court
of Workers’ Compensation Claims Practices and Procedures, Section 2.02(B) (“Absent a showing of
good cause as determined by the Judge, the date of the . . . Compensation Hearing shall not be
modified.”).
                                                  5
Workers’ Comp. App. Bd. Sept. 21, 2015); see also Valladares v. Transco Prods., Inc.,
Nos. 2015-01-0117 & -0118, 2016 TN Wrk. Comp. App. Bd. LEXIS 31, at *26 (Tenn.
Workers’ Comp. App. Bd. July 27, 2016) (“[A] trial court has the necessary discretion to
control the pace of litigation through the use of case supervision and docket
management,” but “such discretion is not without its limits.”). Such discretion
encompasses a trial court’s decision to grant or deny a motion to continue and, as such,
the court’s decision will be disturbed on appeal only upon a showing that the court’s
decision “applied an incorrect legal standard, or reached a decision which is against logic
or reasoning that caused injustice to the party complaining.” Hubbard v. Sherman-Dixie
Concrete Indus., No. E2010-02219-WC-R3-WC, 2011 Tenn. LEXIS 965, at *11 (Tenn.
Workers’ Comp. Panel Oct. 18, 2011).

       In the present case, Employee filed her motion to continue on January 18, 2018,
asking the trial court to set new deadlines for discovery and for taking medical proof.
She also requested a continuance of the February 6, 2018 trial date. Employer opposed
the motion, arguing Employee had not shown good cause to delay the trial date or
extraordinary circumstances to extend the deadline to obtain medical proof. Employer
claimed the delay was due to (1) Employee’s failure to promptly obtain new counsel, and
(2) her new attorney’s “lack of diligence” in determining the status of the case. The trial
court granted the continuance, finding Employee’s need for more time constituted good
cause to continue the trial date. Employer contends the trial court should have also made
a finding of extraordinary circumstances to justify its extension of deadlines to take
depositions as contemplated by Rule 0800-02-21-.16(5).

        It is true the trial court made no express findings with respect to whether
extraordinary circumstances existed to justify the extension of discovery deadlines and,
had it done so, this appeal may have been avoided. The court did find that Employee had
established good cause for a continuance because, according to the trial court,
“fundamental fairness allows the parties to develop their medical proof.” Based on this
record, we find no abuse of discretion in granting Employee’s motion for a continuance.

       The trial court’s order granting the continuance reflects that Employee’s reasons
for requesting a continuance were not limited to the deposition of her medical expert, and
the court disagreed with Employer’s contention that the delay resulting in the need for a
continuance was due to Employee’s lack of diligence. Moreover, the trial court
accredited the statements of Employee’s counsel that she was unaware the scheduling
order was in place at the time she was retained. The trial court also found that
Employee’s lawyer had exercised appropriate diligence by “obtain[ing] an independent
evaluation of [Employee], attempt[ing] to schedule that expert’s deposition, and
submit[ing] a settlement demand to [Employer] before moving for this continuance.”

       Considering the totality of the circumstances, we have no difficulty finding that
the trial court did not abuse its discretion in granting Employee’s request for a

                                            6
continuance. We do, however, encourage trial judges to make express findings in light of
the extraordinary circumstances standard as reflected in Rule 0800-02-21.-16(5) when
deciding whether to grant additional time to take depositions.

                                      Conclusion

        For the foregoing reasons, we hold that this appeal is properly before us.
Accordingly, we deny Employee’s request to dismiss the appeal. We further find that the
trial court did not abuse its discretion in granting Employee’s motion for a continuance.
The trial court’s decision is affirmed, and the case is remanded for any further
proceedings that may be necessary. Costs on appeal are taxed to Employer.




                                           7
                         TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                           WORKERS’ COMPENSATION APPEALS BOARD

Sarah Love                                                   )   Docket No. 2015-07-0195
                                                             )
v.                                                           )    State File No. 55816-2015
                                                             )
Delta Faucet Company, et al.                                 )
                                                             )
                                                             )
Appeal from the Court of Workers’                            )
Compensation Claims                                          )
Allen Phillips, 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 30th day of April, 2018.
 Name                      Certified   First   Class   Via   Fax       Via     Sent to:
                           Mail        Mail            Fax   Number    Email

 Julie Reasonover                                                        X     julie@reasonoverlaw.com
 Hailey H. David                                                         X     davidh@waldrophall.com
 Allen Phillips, Judge                                                   X     Via Electronic Mail
 Kenneth M. Switzer,                                                     X     Via Electronic Mail
 Chief Judge
 Penny Shrum, Clerk,                                                     X     Penny.Patterson-Shrum@tn.gov
 Court of Workers’
 Compensation Claims




Matthew Salyer
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
