                                                                                 FILED
                                                                                Oct 15, 2019
                                                                               01:30 PM(CT)
                                                                                 TENNESSEE
                                                                            WORKERS' COMPENSATION
                                                                               APPEALS BOARD

            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD
                (HEARD OCTOBER 1, 2019, AT NASHVILLE)

Bobby Williams                              )   Docket No. 2019-06-0268
                                            )
v.                                          )   State File No. 71924-2017
                                            )
CoreCivic, et al.                           )
                                            )
                                            )
Appeal from the Court of Workers’           )
Compensation Claims                         )
Joshua D. Baker, Judge                      )


                               Affirmed and Remanded

This interlocutory appeal concerns the employee’s right to have his own physician
present for an examination performed by a physician selected by the employer. The
employer filed a motion to compel the employee to submit to an examination by the
employer’s physician pursuant to Tennessee Code Annotated section 50-6-204(d)(1)
(2018). The employee agreed to the requested examination, but asserted that his statutory
right to have his own physician present permitted his physician’s observing the
examination via videoconference. The trial court granted the employer’s motion to
compel the employee to attend the examination but determined the statute giving the
employee the right to have his own physician present contemplated only the physician’s
physical presence at the examination. The employee has appealed. We affirm the trial
court’s decision and remand the case.

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

Steven Fifield, Hendersonville, Tennessee, for the employee-appellant, Bobby Williams

Peter Frech and Alex Morrison, Brentwood, Tennessee, for the employer-appellee,
CoreCivic




                                           1
                         Factual and Procedural Background

       Bobby Williams (“Employee”) worked for CoreCivic (“Employer”) as a
corrections officer in Hartsville, Tennessee. On September 6, 2017, Employee was
injured in the course and scope of his employment when he was assaulted by an inmate.
In addition to physical injuries, Employee alleged he suffered a mental injury as a result
of the assault. Employer accepted the claim as compensable and provided Employee
with a panel of psychiatrists from which Employee selected Dr. Greg Kyser as his
treating psychiatrist. Dr. Kyser treated Employee for his psychiatric complaints,
ultimately placing Employee at maximum medical improvement on February 14, 2019
and assessing a ten percent impairment rating. After reviewing Dr. Kyser’s report,
Employer requested that Employee submit to a medical examination by Dr. Keith Caruso,
a physician designated by Employer as contemplated in Tennessee Code Annotated
section 50-6-204(d)(1).

       Employee agreed to schedule the evaluation with Dr. Caruso and requested that
Dr. Kyser be present at the evaluation. Citing concerns related to transportation and the
cost of Dr. Kyser closing his office for the day, Employee sought to coordinate live-
streaming so Dr. Kyser could attend the evaluation remotely. Employer objected to the
examination being live-streamed and filed a motion to compel the medical examination
and to bar any live-steaming or videotaping, contending the provision in Tennessee Code
Annotated section 50-6-204(d)(1) allowing Employee’s physician to be present for the
examination was limited to the physician’s physical presence at the examination.
Employee responded that live-streaming was within the meaning of Tennessee Code
Annotated section 50-6-204(d)(1) because a “live video stream presence of the doctor
operates the exact same way as an in-person scenario.” Employee further argued that the
plain meaning of “present” in the statute does not require the physician’s physical
presence.

       Following a hearing on Employer’s motion, the trial court granted the motion and
ordered Employee to submit to an examination, but limited Employee’s physician to in-
person attendance at the examination. The trial court concluded that the statute in
question was not ambiguous and that allowing the physician to attend remotely would
expand the statute beyond its plain meaning. Employee has appealed.

                                  Standard of Review

       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). However, we are mindful of our obligation to construe the workers’
compensation statutes “fairly, impartially, and in accordance with basic principles of


                                            2
statutory construction” and in a way that does not favor either the employee or the
employer. Tenn. Code Ann. § 50-6-116 (2018).

                                       Analysis

       Employee raises a single issue on appeal: whether the trial court erred in
determining that Tennessee Code Annotated section 50-6-204(d)(1) is unambiguous and
requires the physical presence, rather than presence via videoconferencing, of an
employee’s physician who is to be present at an examination by the employer’s
physician.

      We recently addressed this issue in Caldwell v. Federal Mogul Motorsports Corp.,
No. 2019-04-0074, 2019 TN Wrk. Comp. App. Bd. LEXIS __ (Tenn. Workers’ Comp.
App. Bd. Oct. 11, 2019), with which this case was consolidated for purposes of oral
argument. In that case, we noted the issue to be one of first impression, stating:

      With no precedent to guide us, we are required to consider the plain and
      ordinary meaning of the statutory language, and we must “avoid a
      construction that unduly restricts or expands the meaning of the language
      used.” Hadzic v. Averitt Express, No. 2014-02-0064, 2015 TN Wrk. Comp.
      App. Bd. LEXIS 14, at *8 (Tenn. Workers’ Comp. App. Bd. May 18,
      2015). When the words in a statute “clearly mean one thing, the courts
      cannot give them another meaning under the guise of construing them.”
      Pfizer, Inc. v. Johnson, No. M2004-00041-COA-R3-CV, 2006 Tenn. App.
      LEXIS 44, at *7 (Tenn. Ct. App. Jan. 23, 2006). We conclude there is no
      reasonable interpretation of the phrase “present at the examination,” as used
      in the context of this statute, that includes an individual’s electronic
      observation from a remote location.

             The language in question, indicating that an employee “must
      submit” to an examination if requested by an employer “at all reasonable
      times,” and that the employee “shall have the right to have the employee’s
      own physician present at the examination,” has been part of the Tennessee
      Workers’ Compensation Law since the passage of the original “Workmen’s
      Compensation Act” in 1919. In considering the plain and ordinary meaning
      of the word “present,” we note that Black’s Law Dictionary defines the
      word to mean “[i]n attendance, not elsewhere.” Black’s Law Dictionary
      (10th ed. 2014). Obviously, the Tennessee General Assembly in 1919 had
      no concept of live-streaming, video-conferencing, or any other method by
      which someone could participate in a meeting electronically from a remote
      location because such technology did not exist. The language in question
      has undergone almost no change since 1919 despite numerous amendments
      to the workers’ compensation law, and we have discovered no legislative

                                           3
       history indicating any intent to adjust the meaning of the language in the
       last one hundred years. If such an adjustment in meaning is intended, it is
       up to the General Assembly, not the courts, to express it.

       ....

              In short, there are no statutes, rules, or regulations providing for the
       video-conferencing of a medical examination pursuant to Tennessee Code
       Annotated section 50-6-204(d)(1). There are no rules or regulations
       explaining the manner in which such video-conferencing would be
       arranged, conducted, or secured. There are no rules or regulations
       governing who bears the expense of arranging and conducting such a
       video-conference. Consequently, with no statutes, rules, or regulations in
       place governing this practice, we decline to create a “right” to insist on the
       video-conferencing or live-streaming of a medical examination. The
       creation of such a right, if deemed appropriate, is a function historically
       reserved for the legislature.

Id. at *__ (footnotes omitted).

       Consistent with our rationale in Caldwell, we affirm the trial court’s conclusion
that Tennessee Code Annotated section 50-6-204(d)(1) does not contemplate allowing an
employee’s physician to be “present” at an employer’s examination via videoconference.

                                        Conclusion

      We affirm the trial court’s order and remand the case. Costs on appeal are taxed
to Employee.




                                             4
                 TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                   WORKERS’ COMPENSATION APPEALS BOARD
                    (HEARD OCTOBER 1, 2019, AT NASHVILLE)

Bobby Williams                                        )      Docket No. 2019-06-0268
                                                      )
v.                                                    )      State File No. 71924-2017
                                                      )
CoreCivic, et al.                                     )
                                                      )
                                                      )
Appeal from the Court of Workers’                     )
Compensation Claims                                   )
Joshua D. Baker, 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 15th day
of October, 2019.

 Name                              Certified   First Class   Via   Via     Sent to:
                                   Mail        Mail          Fax   Email
 Steven C. Fifield                                                   X     steven@rockylawfirm.com
 Peter Frech                                                         X     ppfrech@mijs.com
 Alex B. Morrison                                                    X     abmorrison@mijs.com
 Joshua D. Baker, 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




Jeanette Baird
Deputy Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-0064
Electronic Mail: WCAppeals.Clerk@tn.gov
