                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                   June 28, 2011 Session

RANDSTAD NORTH AMERICA, L.P. v. TENNESSEE DEPARTMENT OF
         LABOR AND WORKFORCE DEVELOPMENT

              An Appeal from the Chancery Court for Davidson County
                   No. 09-716-II   Carol L. McCoy, Chancellor


               No. M2011-00070-COA-R3-CV - Filed November 1, 2011


This appeal involves the constitutionality of a statute on temporary disability benefits, T.C.A.
§ 50-6-238. The plaintiff employment agency refused to pay temporary disability benefits
to an employee who claimed that she was disabled from an on-the-job injury. The employee
filed a request for assistance with the defendant Tennessee Department of Labor and
Workforce Development pursuant to T.C.A. § 50-6-238. A workers’ compensation specialist
entered an order requiring the employer to pay temporary disability benefits to the employee.
The employer filed an unsuccessful administrative appeal. The employer then filed the
instant petition for common law writ of certiorari alleging, inter alia, that the procedures in
T.C.A. § 50-6-238 violate the employer’s right to procedural due process. The trial court
agreed and held the statute to be unconstitutional on its face. The State appeals. In light of
this Court’s recent decision in Tyson Foods v. TDOL, No. M2010-0227-COA-R3-CV, 2011
WL 4790980 (Tenn. Ct. App. Oct. 10, 2011), we reverse the decision of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court is Reversed

H OLLY M. K IRBY, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J., and
J. S TEVEN S TAFFORD, J., joined.
Robert E. Cooper, Jr., Attorney General & Reporter; Joseph F. Whalen, Associate Solicitor
General; and Joshua Davis Baker, Assistant Attorney General, for the Respondent/Appellant
The Tennessee Department of Labor and Workforce Development

Gregory H. Fuller, Knoxville, Tennessee, for the Petitioner/Appellee Randstad North
America, L.P.

Donald D. Zuccarello, Nashville, Tennessee, for the Respondent/Appellee Erica Doud 1

                                             OPINION

Petitioner/Appellee Randstad North America, L.P. (“Randstad”), is an employment agency,
and Respondent/Appellee Erica Doud (“Ms. Doud”) was an employee of Randstad. On July
30, 2008, while working as a temporary employee at the Calsonic factory in Lewisburg,
Tennessee, Ms. Doud reported a work-related injury to her left shoulder.2 Randstad accepted
the claim as a compensable injury, and Ms. Doud was restricted to light-duty work. Ms.
Doud immediately received light duty work at Calsonic. She continued working in that
capacity, and she also continued to receive medical treatment for her injury. On November
7, 2007, Ms. Doud was laid off by Calsonic due to “the slumping economy.”

After the termination of Ms. Doud’s assignment at Calsonic, Randstad declined to pay Ms.
Doud temporary disability benefits, but instead sought other light-duty positions for her. On
November 20, 2008, Ms. Doud filed a request for assistance with the Respondent/Appellant
Tennessee Department of Labor and Workforce Development (“the Department” or
“TDOL”) seeking temporary disability benefits pursuant to Tennessee Code Annotated § 50-
6-238(a)(2). That statute provides that, “[i]f, in light of available information, a workers’
compensation specialist determines that it is appropriate to order the payment of temporary
disability benefits to an employee, then a workers’ compensation specialist may order the
initiation, continuation or reinstitution of the benefits by an employer or the employer’s
workers’ compensation insurer.” Tenn. Code Ann. § 50-6-238(a)(2) (2008). Ms. Doud’s
claim was assigned to Workers’ Compensation Specialist Henry Tupis (“Mr. Tupis”).




1
 Ms. Doud did not file an appellate brief, but she filed a notice that she joined with the brief of the
Department. She also argued that any amount determined to have been paid by Randstad in error must be
refunded from the Second Injury Fund, and not from her, pursuant to Tennessee Code Annotated § 50-6-
238(b).
2
 The facts recited herein are taken from Randstad’s amended petition for writ of certiorari and are not
disputed for purposes of this appeal.

                                                  -2-
On January 2, 2009, Mr. Tupis sent a letter to the parties setting January 29, 2009, as the
deadline for submitting information to him about whether Ms. Doud should be awarded
temporary disability benefits. The letter informed Randstad that, “[i]n the event that the
Department finds that disability benefits are owed and have been paid in an untimely manner,
the Employer/Carrier may be subject to a civil penalty(s) pursuant to T.C.A. § 50-6-205.”
In response to Mr. Tupis’s letter, Randstad submitted documentation showing that Ms. Doud
was offered and refused light duty work on December 12, 2009, at Ace Bayou in Lewisburg.
Ms. Doud submitted information to Mr. Tupis as well.

On February 4, 2009, Mr. Tupis issued an order awarding Ms. Doud the maximum temporary
disability and medical benefits of “$752.00 per week because the employer/carrier provided
no wage statement.” Immediately, on February 5, 2009, Randstad submitted a C41 wage
statement, showing that Ms. Doud’s proper compensation rate was $233.98 per week.
Randstad requested that Mr. Tupis’s order be modified to reflect this rate. Citing Section 50-
6-201(c), Randstad argued that it was not required to file a wage statement because Ms.
Doud had returned to her employment within seven days of her injury. After that, Mr. Tupis
issued a modified order reducing the compensation rate for the temporary disability benefits
going forward, but he did not modify the order for past benefits.

Randstad requested administrative review of Mr. Tupis’s order pursuant to Section 50-6-
238(d)(1)(B), and also requested a formal contested case hearing and declaratory order.3 The
Department declined to convene a contested case hearing, but instead conducted an informal
teleconference on February 18, 2009.4 In the teleconference, Randstad argued, among other


3
    That statute provides:

           If a specialist issues an order for the payment of workers’ compensation benefits pursuant
           to this section, the party against whom the order was issued may request the administrator
           of the division of workers' compensation to administratively review the specialist’s order
           by submitting a written request to the administrator in a format specified by the
           administrator. . . .

Tenn. Code Ann. § 50-6-238(d)(1)(B)(i).
4
    Section 50-6-238(d)(2)(A) describes the method of review of a workers’ compensation specialist’s order:

           (2)(A) After receipt of a written request for administrative review of a specialist’s order, an
           informal conference with the affected parties shall be conducted by the administrator or the
           administrator’s designee. The informal conference with the administrator or the
           administrator’s designee shall occur within ten (10) calendar days of the date the
           administrator received the written request for administrative review. The administrator’s
                                                                                                    (continued...)

                                                        -3-
things, that imposing the maximum compensation rate penalized Randstad in the amount of
$6,734.26 for not filing a wage statement, and that the procedures in Section 50-6-238 are
unconstitutional. On February 24, 2009, the Department affirmed the order awarding
temporary disability and medical benefits to Ms. Doud. In upholding the decision, the
Department determined that it was authorized to order “temporary disability benefits,” found
that Ms. Doud had called in every week looking for work but was never offered light-duty
work, and held that the Department lacked jurisdiction to address constitutional issues. The
Department ordered Randstad to pay the past temporary disability benefits within ten days
or face $10,000 in civil penalties pursuant to Section 50-6-238(d)(3).5 On March 9, 2009,
Randstad again requested a contested case hearing and petitioned the Department for a
declaratory order pursuant to Section 4-5-223(a). Two days later, the directors of the
Department’s Administrative Review and Penalty Programs wrote a letter to Randstad’s
attorney, denying Randstad’s request for a hearing or declaratory order and advising him that
Randstad may file suit “after the administrative process is exhausted” if it is aggrieved with
the decision.

On April 14, 2009, Randstad filed the instant petition in the Chancery Court of Davidson
County, seeking a common law writ of certiorari and/or a declaratory judgment pursuant to
Section 4-5-225 of the Uniform Administrative Procedures Act. In that petition, Randstad
requested, among other things, that the trial court declare Tennessee Code Annotated § 50-6-
238(a)(2) to be facially unconstitutional on the ground that it violated procedural due process.
The trial court refused to issue the writ because Randstad had not exhausted its
administrative remedies, but it considered Randstad’s constitutional challenge.          On April
22, 2010, the trial court held a hearing on the constitutional due process issue. On November
22, 2010, the trial court entered an order holding that Section 50-6-238(a)(2), vesting


4
    (...continued)
            designee shall be a Tennessee licensed attorney, shall have a minimum of five (5) years of
            experience with the Workers' Compensation Law, compiled in this chapter, and shall not be
            the specialist who issued the order that is the subject of administrative review.

Tenn. Code Ann. § 50-6-(d)(2)(A).
5
    That statute provides in part:

           If an insurer, self-insured employer or self-insured pool fails to comply with an order issued
           by a specialist within fifteen (15) calendar days of receipt of the order, or fails to comply
           with an order issued by the administrator or administrator's designee within ten (10)
           calendar days of the receipt of the order, whichever is applicable, the commissioner shall
           assess a penalty in the amount of ten thousand dollars ($10,000).

Tenn. Code Ann. § 50-6-238(d)(3).

                                                        -4-
discretion in a Workers’ Compensation Specialist to order the payment of pretrial temporary
disability benefits, violated Randstad’s procedural due process rights, but not its substantive
due process rights. The trial court determined that the employer had a substantial private
interest at stake, that the risk of erroneous deprivation of property was too high under the
statutory scheme, and that the statutory procedures do not provide the employer a meaningful
hearing to review the order of the Specialist. Based on these findings, the trial court
concluded that the statute “does not provide for any meaningful manner to review the
specialist’s order or the Department’s order upholding it. . . . For the foregoing reasons,
[Section 50-6-238(a)(2)] is declared to violate Randstad’s procedural due process rights and
is held to be unconstitutional.” From this order, the Department now appeals.

                      I SSUE ON A PPEAL AND S TANDARD OF R EVIEW

The Department raises a single issue on appeal, namely, whether the trial court erred in
declaring Section 50-6-238(a)(2) to be unconstitutional on procedural due process grounds.
Whether the statute is facially unconstitutional is a question of law, which we review de
novo, affording no presumption of correctness to the trial court’s conclusion. See Lynch v.
City of Jellico, 205 S.W.3d 384, 390 (Tenn. 2006). In addressing this issue, we must be
mindful that “[s]tatutes enacted by the legislature are presumed constitutional. Thus, we
must ‘indulge every presumption and resolve every doubt in favor of constitutionality.’” City
of Oakland v. McCraw, 126 S.W.3d 29, 38 (Tenn. Ct. App. 2003) (citing Vogel v. Wells
Fargo Guard Servs., 937 S.W.2d 856, 858 (Tenn. 1996)).

                                          A NALYSIS

On October 11, 2011, after oral argument was conducted in this case, the Department filed
a notice of supplemental authority pursuant to Tennessee Rule of Appellate Procedure 27(d),
citing a recent case decided by this Court on similar facts, Tyson Foods v. Tennessee
Department of Labor, No. M2010-02277-COA-R3-CV, 2011 WL 4790980 (Tenn. Ct. App.
Oct. 10, 2011). As we find this case to be determinative, we discuss it at length.

In Tyson Foods, a Tyson Foods employee filed a request for assistance with the Department,
claiming that she had suffered a work-related injury and was entitled to temporary disability
benefits. Pursuant to Section 50-6-238(a)(2), the statute at issue in this appeal, the workers’
compensation specialist assigned to the Tyson Foods employee’s case determined that she
was entitled to benefits and ordered Tyson Foods to commence paying her workers’
compensation benefits. Tyson Foods pursued an administrative appeal of the Specialist’s
order, but the Department affirmed the order requiring the payment of benefits. Tyson
Foods, 2011 WL 4790980, at *1.



                                              -5-
After that, Tyson Foods filed a common law petition for writ of certiorari, seeking review
and reversal of the Department’s order. As Randstad argues in the case at bar, Tyson Foods
argued, among other things, that “its due process rights were violated because there is not an
adequate appellate process for review of the Request for Assistance order.” Id. The
Department filed a motion to dismiss Tyson Food’s petition, asserting that the trial court did
not have subject matter jurisdiction over it. The trial court granted the Department’s motion,
dismissing Tyson Foods’ petition for common law writ of certiorari for failure to exhaust
administrative remedies. The trial court in Tyson Foods also dismissed Tyson Food’s
request to hold the statute unconstitutional. It held that the workers’ compensation statutory
scheme did not violate Tyson Foods’ procedural due process rights. Id. Tyson Foods
appealed this decision.

On appeal, this Court affirmed the trial court’s decision in all respects. The Tyson Foods
Court determined that Tyson Foods’ petition for common law writ of certiorari was
premature, because Tyson Foods was required to exhaust its administrative remedies before
filing a petition for writ of certiorari. In addition, the Tyson Foods Court held that the
statutory procedures were constitutional, because the statutory framework afforded the
employer an adequate remedy at law under Section 50-6-238(c), which provides for a de
novo judicial hearing of the administrative decision,6 and for a full refund to the employer
in the event that it is determined that the workers’ compensation specialist wrongfully
ordered the payment of benefits under Section 50-6-238(b).7 The Tyson Foods Court
outlined in detail the protocol set out in Section 50-6-238:

6
    That provision states:

           (c) Evidence of the denial of initiation, continuation or reinstitution of compensation
           ordered pursuant to this section by a workers’ compensation specialist is inadmissible in a
           subsequent proceeding. In a case where an employer or insurer has paid benefits pursuant
           to an order of a workers’ compensation specialist, and the employer or insurer wishes to
           contest the compensability of the injury, then the court shall hear the issue de novo, and no
           presumption of correctness is given to any prior determination.

Tenn. Code Ann. § 50-6-238(c).
7
    That provision states:

           (b) If a specialist has ordered the payment of benefits pursuant to this section and a court
           subsequently finds that the employee was not entitled to the ordered benefits, then the entity
           or person who paid the benefits shall be entitled to a refund of all amounts paid pursuant to
           a specialist’s order or orders. The refund shall be paid from the second injury fund
           established by § 50-6-208.

Tenn. Code Ann. § 50-6-238(b).

                                                        -6-
       The Request for Assistance protocol, which is the focus of this appeal, was
       adopted in 2004 as part of the Workers’ Compensation Reform Act and is set
       forth at Tennessee Code Annotated § 50-6-238. Under the statute, any party
       “may request the assistance of a workers’ compensation specialist in the
       determination of whether temporary disability or medical benefits are
       appropriate by filing with the division a form prescribed for that purpose by
       the commissioner.” Tenn. Code Ann. § 50-6-238(a)(1)(A). Once a request
       has been made by either party, a workers’ compensation specialist is assigned
       to the case. The specialist then obtains relevant medical records, written
       statements, and other information from the employee and employer, after
       which the specialist independently determines whether benefits are appropriate
       based upon the information provided. Tenn. Code Ann. § 50-6-238(a)(5)–(6).
       If, in light of the available information, the specialist determines it is
       appropriate to order the payment of temporary disability benefits or that
       medical benefits be provided, the specialist may order the initiation,
       continuation, or reinstitution of the benefits by an employer or workers’
       compensation insurer. Tenn. Code Ann. § 50-6-238(a)(2)-(3). If the employer
       or insurer is dissatisfied with the specialist’s decision, it may seek
       administrative review by requesting an informal conference before the
       administrator or administrator’s designee. Tenn. Code Ann. § 50-6-
       238(d)(1)(B)(I).

Id. at *2 (footnotes omitted). The appellate court went on to explain that, if the employer is
not satisfied with the administrative decision that is made after the informal review, the
employer may contest the decision in the de novo judicial hearing. The Court acknowledged
that judicial review is not available to the employer until after the employee reaches
maximum medical recovery and there has been an exhaustion of the Benefit Review
Conference Process. See Tenn. Comp. R. & Regs. 0800-2-5-.09, cited in Tyson Foods, 2011
WL 4790980, at *3 (setting out ways in which the benefit review conference process is
exhausted).

In the instant case, Randstad challenges the constitutionality of Section 50-6-238, making
essentially the same argument that was addressed in Tyson Foods. The crux of its position
is that, on its face, the statute deprives employers of prompt and meaningful judicial review
of decisions issued by the workers’ compensation specialists. Randstad argues that, by
delaying judicial review and recovery until after the benefit review conference process has
been completed, the statutory scheme at issue tolerates an unacceptably high risk of
erroneous deprivation to the employer; in other words, justice delayed is justice denied.
Randstad insists that these procedural deficiencies are not resolved by a belated benefits
refund, made possible only after the benefit review conference process has been exhausted.

                                             -7-
It argues further that there are no procedures in place to compel the Second Injury Fund to
refund to the employer the benefits paid to the employee under the statute.

We acknowledge that Randstad makes cogent arguments. These arguments, however, were
addressed and rejected in Tyson Foods.8 In support of its conclusion, the Tyson Foods Court
relied on McCall v. National Health Corporation, 100 S.W.3d 209 (Tenn. 2003), in which
Tennessee’s Supreme Court rejected a similar argument made under the previous workers’
compensation scheme. In McCall, the employer argued that allowing the initiation of
temporary benefits before a full trial violated the employer’s due process rights because it
had no recourse to obtain reimbursement for benefits wrongfully paid. McCall, 100 S.W.3d
at 213. The Supreme Court rejected this argument, stating that “any due process argument
fails because an employer does, in fact, have recourse should the court later determine that
the claimant did not suffer a compensable injury.” Id.

While the issue is close, we are persuaded by the reasoning in Tyson Foods. For the reasons
stated in that case, as supported in McCall, we find that the post-deprivation remedy of a de
novo judicial hearing and the prospect of a full refund from the Second Injury Fund for
benefits paid in compliance with an erroneous order by a workers’ compensation specialist
satisfies the employer’s right to procedural due process. On this basis, we must respectfully
reverse the decision of the trial court and dismiss Randstad’s request for declaratory relief
seeking a declaratory judgment that Section 50-6-238 is unconstitutional based on procedural
due process grounds.

                                              C ONCLUSION

The decision of the trial court is reversed and the declaratory judgment action is dismissed.
Costs on appeal are to be taxed to Appellee Randstad North America, L.P., for which
execution may issue, if necessary.




                                                            _________________________________
                                                            HOLLY M. KIRBY, JUDGE




8
 The appellate court noted that the inability of employers to obtain judicial review of the Specialist’s decision
before the exhaustion of the Benefit Review Process has become an “emerging issue” in the law. See Tyson
Foods, 2011 WL 4790980, at *2 & n.3.

                                                      -8-
