                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                August 26, 2011 Session

TYSON FOODS (RE: SANDRA GIBSON) v. TENNESSEE DEPARTMENT
    OF LABOR & WORKFORCE DEVELOPMENT, WORKERS’
                 COMPENSATION DIVISION

               Appeal from the Chancery Court for Davidson County
           No. 101148-I & No. 101205-I Claudia Bonnyman, Chancellor


               No. M2010-02277-COA-R3-CV - Filed October 10, 2011


Employer filed a petition for common law writ of certiorari to challenge the order of the
Tennessee Department of Labor, issued pursuant to the Request for Assistance protocol, that
it provide temporary disability and medical workers’ compensation benefits. Upon the
motion of the Department of Labor, the trial court dismissed the petition on two grounds: that
the court lacked subject matter jurisdiction to review the Department’s decision and that the
employer possessed another adequate remedy at law under Tenn. Code Ann. § 50-6-
238(b)(6). We affirm.

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

F RANK G. C LEMENT, JR., J., delivered the opinion of the Court, in which A NDY D. B ENNETT
and R ICHARD H. D INKINS, JJ., joined.

Terry L. Hill and Michael L. Haynie, Nashville, Tennessee, for the appellant, Tyson Foods.

Robert E. Cooper, Jr., Attorney General and Reporter; Joseph F. Whalen, Associate Solicitor
General; and Joshua Davis Baker, Assistant Attorney General, for the appellee, Tennessee
Department of Labor and Workforce Development, Workers’ Compensation Division.

                                         OPINION

       The genesis of this action was when a Tyson Foods employee, Sandra Gibson, filed
a Request for Assistance with the Tennessee Department of Labor seeking temporary
disability and medical benefits for an injury she claims to have suffered on the job at Tyson
Foods. A workers’ compensation specialist with the Department issued an Order requiring
Tyson to commence paying workers’ compensation benefits to Ms. Gibson. Tyson Foods
pursued an administrative appeal of the specialist’s order. The Department affirmed the
decision, following which Tyson Foods filed this petition for common law writ of certiorari
seeking review and reversal of the Department’s Order. In the petition, Tyson Foods claimed
that: (1) ex parte communications between the workers’ compensation specialist who issued
the order and the employee’s treating doctors was arbitrary, capricious, and illegal; (2) the
Department acted arbitrarily and capriciously when it issued the order mandating that it
provide temporary disability and medical benefits; and (3) its due process rights were
violated because there is not an adequate appellate process for review of the Request for
Assistance order.1

       The Department filed a Tenn. R. Civ. P. 12.02 motion to dismiss the petition on the
ground that the trial court lacked subject matter jurisdiction under Tennessee Code Annotated
§ 50-6-238 et seq., the statutory scheme governing workers’ compensation benefits.
Following a hearing, the trial court granted the motion and dismissed the petition of Tyson
Foods. The trial court determined that it lacked subject matter jurisdiction to review the
decision of the Department under the common law writ of certiorari because the General
Assembly had not specifically provided for an interlocutory review of a decision under the
Request for Assistance protocol under the Uniform Administrative Procedures Act. The trial
court also held that Tyson Foods had an adequate remedy at law under Tenn. Code Ann. §
50-6-238(b)(6); therefore, it was not entitled to review under a common law writ of
certiorari. This appeal followed.

                                         S TANDARD OF R EVIEW

       This appeal requires us to focus on two important standards of review. The first is the
narrow standard of judicial review of petitions for common law writ of certiorari. Powell v.
Parole Eligibility Review Bd., 879 S.W.2d 871, 873 (Tenn. Ct. App. 1994). In this case, the
scope of our review is limited to whether the Department exceeded its jurisdiction or acted
“illegally, arbitrarily, or fraudulently.” Id. (citing Yokley v. State, 632 S.W.2d 123 (Tenn. Ct.
App. 1981)). This standard of review also includes an inquiry into whether the Department
acted without material evidence to support its decision. Lafferty v. City of Winchester, 46
S.W.3d 752, 759 (Tenn. Ct. App. 2001). This standard of review, however, does not permit
the courts to look to the intrinsic correctness of the administrative decision, but rather limits
the review to the procedure by which the decision was reached. Powell, 879 S.W.2d at 873.
Whether to grant or deny a petition for writ of certiorari is a matter of discretion; therefore,
we review the trial court’s decision to dismiss a petition for the common law writ of


        1
          Tyson also filed a request for a stay of the Department’s order to pay benefits; the trial court denied
the stay following a hearing on October 5, 2010. The denial of the stay is not an issue on appeal.

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certiorari under the abuse of discretion standard. Boyce v. Williams, 389 S.W.2d 272, 277
(Tenn. 1965).

       The second relevant standard of review is that which pertains to the standard by which
Tennessee courts are to assess a Tenn. R. Civ. P. 12.02 motion to dismiss. Our Supreme
Court recently addressed Tennessee’s standard of review concerning motions to dismiss and
confirmed that the standard has not changed since the adoption of the Tennessee Rules of
Civil Procedure in 1970.2 Webb v. Nashville Area Habitat for Humanity, Inc., No. M2009-
01552-SC-R11CV, ___ S.W.3d ___, 2011 WL 2905584 (Tenn. July 21, 2011).

        A Rule 12.02(6) motion challenges only the legal sufficiency of the complaint,
        not the strength of the plaintiff’s proof or evidence. Highwoods Props., Inc. v.
        City of Memphis, 297 S.W.3d 695, 700 (Tenn. 2009). The resolution of a
        12.02(6) motion to dismiss is determined by an examination of the pleadings
        alone. Leggett v. Duke Energy Corp., 308 S.W.3d 843, 851 (Tenn. 2010). A
        defendant who files a motion to dismiss “‘admits the truth of all of the relevant
        and material allegations contained in the complaint, but . . . asserts that the
        allegations fail to establish a cause of action.’” Brown v. Tenn. Title Loans,
        Inc., 328 S.W.3d 850, 854 (Tenn. 2010) (quoting Freeman Indus., LLC v.
        Eastman Chem. Co., 172 S.W.3d 512, 516 (Tenn. 2005)).

        In considering a motion to dismiss, courts “‘must construe the complaint
        liberally, presuming all factual allegations to be true and giving the plaintiff
        the benefit of all reasonable inferences.’” Tigg v. Pirelli Tire Corp., 232
        S.W.3d 28, 31–32 (Tenn. 2007) (quoting Trau–Med, 71 S.W.3d at 696); see
        Leach v. Taylor, 124 S.W.3d 87, 92–93 (Tenn. 2004). A trial court should
        grant a motion to dismiss “only when it appears that the plaintiff can prove no
        set of facts in support of the claim that would entitle the plaintiff to relief.”
        Crews v. Buckman Labs. Int’l, Inc., 78 S.W.3d 852, 857 (Tenn. 2002). We
        review the trial court’s legal conclusions regarding the adequacy of the
        complaint de novo. Brown, 328 S.W.3d at 855; Stein, 945 S.W.2d at 716.

Webb, ___ S.W.3d ___, 2011 WL 2905584, at *2-3 (some internal citations omitted).




        2
         In Webb, the Tennessee Supreme Court stated that the “plausibility” pleading standard set forth in
the recent United States Supreme Court decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct.
1955, 167 L. Ed.2d 929 (2007), and Ashcroft v. Iqbal, ––– U.S. ––––, 129 S.Ct. 1937, 173 L. Ed.2d 868
(2009), is not to be followed by Tennessee courts.

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                                                A NALYSIS

        Tyson Foods contends the trial court erred in granting the motion to dismiss based on
the determination that it lacked subject matter jurisdiction to review the Department’s order.
This was error, Tyson asserts, because the Request for Assistance statutory scheme violates
its due process rights and does not provide an adequate remedy at law if it is later determined
that the benefits were not owing. This is because the statutory scheme does not provide a
means of obtaining reimbursement until after the employee reaches maximum medical
recovery and at the expense of further litigation for which it will not be reimbursed.3

       The Department of Labor’s authority to order workers’ compensation benefits is
derived from Tennessee Code Annotated § 50-6-236. 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.4 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.5 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,


        3
          A recent article in the Tennessee Attorneys Memo noted that the ability of a trial court to review
orders of the Department of Labor and Workforce Development’s specialists prior to the exhaustion of the
benefit review process was an “emerging issue.” See Trial courts explore how to review specialists’ orders,
Tennessee Attorneys Memo, Vol. 36 No. 30, July 25, 2011, at 1-3. The article highlighted the various
methods by which employers were attempting to gain trial court review prior to an exhaustion such as
petitions for common law writ of certiorari, petitions for judicial review, and declaratory judgments regarding
the constitutionality of Tenn. Code Ann. § 50-6-238(c). Id. The article noted that no appellate panel decision
regarding this issue had been issued at the time of publication. Id.
        4
        “With respect to the determination of whether to order the payment of temporary disability or
medical benefits, a workers’ compensation specialist shall not be an advocate for either party, but shall
decide the issues solely on the basis of the information available to the specialist without favor or
presumption for or against either party.” Tenn. Code Ann. § 50-6-238(a)(1)(C).
        5
        Documents and information typically submitted to the specialist are identified in a Department of
Labor Rule, Tenn. Comp. R. & Regs. 0800-2-5-.05. In complex cases, the parties may engage in formal
discovery pursuant to Tenn. Code Ann. § 50-6-236(i) and Tenn. Comp. R. & Regs. 0800-2-5-.06.

                                                     -4-
continuation, or reinstitution of the benefits by an employer or workers’ compensation
insurer.6 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.7 Tenn. Code Ann. § 50-6-
238(d)(1)(B)(i).

        An employer or insurer that paid benefits pursuant to an order may contest the
compensability of the injury after the employee has reached maximum medical recovery, in
which event “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(6)(c). If the court finds that
the employee was not entitled to the 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 . .
. [t]he refund shall be paid from the second injury fund . . . .” Tenn. Code Ann. § 50-6-
238(b). However, in order to obtain judicial review of the issue of compensability of an
injury, the employer or insurer must wait until there has been an exhaustion of the benefit
review conference process. Tenn. Code Ann. § 50-6-225(a)(2)(A); see also Tenn. Code Ann.
§ 50-6-239(b) (“The parties to a dispute shall attend and participate in a benefit review
conference that addresses all issues related to a final resolution of the matter as a condition
precedent to filing a complaint with a court of competent jurisdiction, unless the benefit
review conference process is otherwise exhausted pursuant to rules promulgated by the
commissioner.”) (emphasis added).8 Pursuant to Tenn. Comp. R. & Regs. 0800-2-5-.09, the
Benefit Review Process is deemed exhausted when one of the following occurs:

        (a) Issuance of a Benefit Review Report which indicates an Order Denying
        Benefits based upon non-compensability of the claim has been issued by a


        6
         The statute further provides that the specialist shall maintain a file, and upon request, the specialist
shall provide the parties an opportunity to review “the information the specialist has in the department’s file
upon which the specialist may base a decision as to whether to order temporary disability or medical benefits,
or both.” Tenn. Code Ann. § 50-6-236(k); Tenn. Code Ann. § 50-6-238(a)(6)(B).
        7
       A similar remedy is available to an employee who is dissatisfied with the specialist’s order. Tenn.
Code Ann. § 50-6-238(d)(1)(A).
        8
         This important aspect of the workers’ compensation statutory scheme is reiterated at Tenn. Code
Ann. § 50-6-203(a)(1), which states “[n]o claim for compensation under this chapter shall be filed with a
court having jurisdiction to hear workers’ compensation matters, as provided in § 50-6-225, until the parties
have exhausted the benefit review conference process provided by the division of workers’ compensation.”




                                                      -5-
       Workers’ Compensation Specialist, provided that:

              1. if Administrative Review of the Specialist’s Order Denying
              Benefits based upon a finding of non-compensability is not
              requested, the Benefit Review Report referenced in (1)(a) above
              will be issued fifteen (15) days after the issuance of the Order
              Denying Benefits;

              2. if Administrative Review of the Specialist’s Order Denying
              Benefits based upon a finding of non-compensability is
              requested, the Benefit Review Report referenced in (1)(a) above
              will be issued fifteen (15) days after issuance of an Order by the
              Administrator’s Designee that upholds the Order Denying Benefits;

              3. A Specialist’s Order Denying Benefits on grounds other than
              compensability does not exhaust the Benefit Review Conference
              process.

       (b) Reaching a mediated settlement, as evidenced by a signed document
       executed by the proper parties and the Workers’ Compensation Specialist;

       (c) Issuance of an impasse report signed and dated by a Workers’
       Compensation Specialist.

       (d) Conducting and completing mediation by private Rule 31 mediator,
       provided the Department has failed to conduct a BRC within 60 days of receipt
       of such a request, pursuant to Tenn. Code Ann. § 50-6-239(c);

       (e) Issuance of a written waiver signed by the Director of the Benefit Review
       Program or the Director’s designee;

Tenn. Comp. R. & Regs. 0800-2-5-.09.

        In dismissing Tyson Foods’s petition for common law writ of certiorari, the trial court
focused on two important components of the relevant statutory scheme. One pertains to an
employer’s right to obtain judicial review of a specialist’s order requiring the employer to
provide benefits during the Benefit Review Process. The other pertains to the employer’s
reimbursement remedy if it is subsequently determined that the employee was not entitled
to the benefits paid or provided by the employer.



                                              -6-
        As for the right to judicial review of a specialist’s order, the trial court correctly noted
that the statutory scheme expressly provides a remedy under the UAPA for court review of
an assessment of a penalty for noncompliance with the order to provide benefits without first
exhausting the benefit review process, Tenn. Code Ann. § 50-6-238(d)(2)(A)(3); however,
the statutes do not provide for judicial review under the UAPA of a specialist’s order
requiring an employer to pay temporary benefits. Also relevant is the fact that the statutory
scheme expressly provides an employer with the right to a de novo trial to challenge the
compensability of an injury; however, it is implicit in the statutory scheme that the employer
must first exhaust the Benefit Review process. Tenn. Code Ann. § 50-6-238(6)(c).

       The second important component of the Request for Assistance statutory scheme, as
correctly noted by the trial court, is that it expressly provides a reimbursement remedy for an
employer or insurer that paid temporary benefits pursuant to a specialist’s order that was later
deemed erroneous. The statute expressly states that an employer or insurer that paid benefits
for a non-compensable injury may receive a full refund from the second injury fund.9 Tenn.
Code Ann. § 50-6-238(b)(6).

        Legislative intent and the purpose of a statute can be determined by the plain and
ordinary language used in the context of the entire statute. Metro. Gov. of Nashville and
Davidson County v. Motel Sys., Inc., 525 S.W.2d 840, 841 (Tenn. 1975). Having conducted
a comprehensive review of the statutes governing the Request for Assistance protocol, we
have concluded, as the trial court correctly concluded, that it was the General Assembly’s
intent to provide an employer and insurer with an immediate judicial remedy following a
specialist’s assessment of a penalty for noncompliance pursuant to Tenn. Code Ann. § 50-6-
238(d)(2)(A)(3); however, the only immediate remedy following a specialist’s order
requiring the employer to provide temporary disability benefits and/or medical benefits is
limited to an administrative appeal to the administrator or administrator’s designee. Tenn.
Code Ann. § 50-6-238(d)(1)(B)(i). As for the availability of judicial review of the
administrative decisions, it is evident that the General Assembly intended to defer the
employer’s or insurer’s right to judicial review until the Benefit Review Process had been
exhausted.




        9
          The State urges us to take note of a Workers’ Compensation Panel decision, Liberty Mutual Ins. Co.
v. Warnock, No. E2010-01453-WC-R3-WC, 2011 WL 2739450 (Tenn. Workers’ Comp. Panel July 14,
2011), for authority that the appropriate procedure for challenging a pretrial administrative decision by a
workers’ compensation specialist is by filing a claim for workers’ compensation benefits and not a petition
for judicial review. However, this opinion was designated not for publication and therefore pursuant to Tenn.
R. Sup. Ct. 4 may not be relied upon.

                                                    -7-
       For the above reasons, the trial court correctly concluded that Tyson Foods’s petition
was premature because it had not exhausted its remedies under the Benefit Review Process
and, therefore, we affirm the trial court’s decision to dismiss the petition for common law
writ of certiorari due to the lack of subject matter jurisdiction.

        In dismissing the petition, the trial court also found that Tyson Foods had failed to
state a common law writ of certiorari claim on the basis that its due process rights were
violated. In McCall v. National Health Corp., 100 S.W.3d 209 (Tenn. 2003), our Supreme
Court rejected a similar argument under the previous workers’ compensation statutory
scheme. In McCall, an employer argued that allowing a trial court to initiate temporary
benefits violated its due process rights because the employer had no recourse to obtain
benefits wrongfully paid. Id. at 213. The Supreme Court rejected this argument stating “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.

       Under the current statute, Tyson Foods has the express right to receive a full refund
from the second injury fund should the court determine, following a de novo trial, that the
temporary benefits were paid for a non-compensable injury. Tenn. Code Ann. § 50-6-238(b).
Therefore, as was the case in McCall, Tyson Foods failed to state a claim that its due process
rights were violated.

                                       In Conclusion

       The judgment of the trial court is affirmed, and this matter is remanded with costs of
appeal assessed against the Appellant, Tyson Foods.


                                                       ______________________________
                                                       FRANK G. CLEMENT, JR., JUDGE




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