            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD


James Yarbrough                             )       Docket No. 2015-08-0574
                                            )
v.                                          )       State File No. 48061-2015
                                            )
Protective Services Company, Inc.           )
                                            )
                                            )
Appeal from the Court of Workers’           )
Compensation Claims                         )
Jim Umsted, Judge                           )



                   Affirmed and Remanded—Filed January 25, 2016


In this interlocutory appeal, the employee alleges an injury to his shoulder stemming
from his duties as a flooring installer. The employer initially provided authorized
medical treatment but ultimately denied the claim due to lack of proper notice and its
belief that a recommended surgery was causally related to a pre-existing condition. The
employee sought an order compelling medical and disability benefits prior to trial and
asked for a determination of the issues based on the record. The employer requested an
evidentiary hearing. The trial court granted the employer’s request and ordered that a
hearing be set. The employee has appealed, asserting that the trial court erred by
ordering a hearing rather than resolving the issues based on the record alone. The
employer responded by filing a motion to dismiss the appeal. We hold that this appeal is
properly before us and that the trial court acted within its discretion in electing to conduct
an evidentiary hearing before deciding whether to award benefits.

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

Andrew Clarke, Memphis, Tennessee, for the employee-appellant, James Yarbrough.

                                                1
Devin Williams, Mt. Juliet, Tennessee, for the employer-appellee, Protective Services
Company, Inc.

                              Factual and Procedural Background

       James Yarbrough (“Employee”), a resident of Shelby County, Tennessee, was
employed as a flooring installer by Protective Services Company, Inc. (“Employer”). On
April 16, 2015, Employee alleges suffering an injury to his right shoulder when he hit his
shoulder on a cabinet door while moving appliances at an apartment for Employer.
According to Employee, he informed his supervisor the following morning that he had
injured his shoulder. However, Employer denies that it was aware Employee claimed to
have suffered a work-related injury until approximately two months after the incident
occurred.

       Employee sought treatment with his primary care physician on May 1, 2015.1 He
was eventually provided with a panel of physicians and began receiving authorized care
from Dr. Riley Jones who recommended surgery. Employer provided authorized medical
treatment until October 8, 2015, at which time it denied further benefits on the basis that
the recommended treatment was due to a pre-existing condition not causally related to the
work accident.

        Thereafter, Employee filed a petition asking the trial court to award medical and
disability benefits prior to trial based on the record alone. Employer responded by filing
a motion for an evidentiary hearing. The trial court sent an email to the parties stating the
court believed the matter should be set for a hearing. Thereafter, the court appropriately
entered an order directing that the case be set for a hearing. See Willis v. All Staff, No.
2014-05-0005, 2015 TN Wrk. Comp. App. Bd. LEXIS 42, at *11 (Tenn. Workers’
Comp. App. Bd. Nov. 9, 2015) (“It is well-settled that a trial court speaks through its
written orders.”). The trial court explained in its order that there were multiple legal
issues in the case, including notice and causation, that material facts were disputed, and
that the court needed additional information to determine whether Employee was likely to
prevail at a hearing on the merits. Employee has appealed this order.

       Employee asserts that Employer’s request for an evidentiary hearing is an
“obvious delay tactic” and argues that the trial court had “absolutely no basis” to order a
hearing. According to Employee, Employer had “no factual, medical, or legal basis to
deny the surgery recommended by Dr. Jones.” Employee also asserts that to “allow [the
trial court] and [Employer] to delay this claim any further would run afoul of the
remedial nature” of the workers’ compensation laws.


1
 Employee’s affidavit filed with his request for an expedited hearing incorrectly lists the date as May 1,
2016.
                                                     2
        Employer responded by filing a motion to dismiss Employee’s appeal. As
grounds for its motion, Employer argues that the trial court has not resolved the
Employee’s Request for Expedited Hearing and thus any appeal is premature. In
addition, Employer asserts that an appeal of the trial court’s order setting the case for a
hearing is in the nature of an appeal by permission under Rule 9 of the Tennessee Rules
of Appellate Procedure, which was not requested by Employee. Finally, in support of the
trial court’s decision that a hearing is warranted, Employer filed the affidavits of four
employees of Employer.2

        Employee responds that he followed proper procedure in filing his appeal and
reiterates his argument that a determination of benefits should be conducted on the
record. The Clerk received the record on January 13, 2016.

                                         Standard of Review

       The standard of review to be applied by this Board in reviewing a trial court’s
decision is statutorily mandated and limited in scope. Specifically, “[t]here shall be a
presumption that the findings and conclusions of the workers’ compensation judge are
correct, unless the preponderance of the evidence is otherwise.” Tenn. Code Ann. § 50-
6-239(c)(7) (2014). The trial court’s decision must be upheld unless the rights of a party
“have been prejudiced because findings, inferences, conclusions, or decisions of a
workers’ compensation judge:

        (A)     Violate constitutional or statutory provisions;
        (B)     Exceed the statutory authority of the workers’ compensation judge;
        (C)     Do not comply with lawful procedure;
        (D)     Are arbitrary, capricious, characterized by abuse of discretion, or
                clearly an unwarranted exercise of discretion;
        (E)     Are not supported by evidence that is both substantial and material
                in the light of the entire record.”

Tenn. Code Ann. § 50-6-217(a)(3) (2015). Like other courts applying the standards
embodied in section 50-6-217(a)(3), we will not disturb the decision of the trial court
absent the limited circumstances identified in the statute.

2
  Employee has filed a motion asking that we not consider three of the four affidavits filed by Employer
on appeal because this information was not made available to the trial judge. As we have observed
before, “[e]valuating a trial court’s decision on appeal necessarily entails taking into account information
the trial court had before it at the time the issues were decided by the court, as opposed to the potentially
open-ended universe of information parties may seek to present on appeal.” Hadzic v. Averitt Express,
No. 2014-02-0064, 2015 TN Wrk. Comp. App. Bd. LEXIS 14, at *13 n.4 (Tenn. Workers’ Comp. App.
Bd. May 18, 2015). Accordingly, Employee’s motion is granted, and we decline to consider all four of
the affidavits filed by Employer, not just the three identified by Employee.


                                                     3
                                         Analysis

                                             A.

                                Subject Matter Jurisdiction

       This case presents an important issue of first impression regarding the jurisdiction
of this Board, namely, whether we may review an interlocutory order other than one
granting or denying medical or disability benefits. Based upon our review of the
applicable statutes, we conclude that the scope of appellate review is not so narrow as to
insulate from review pre-trial orders that do not directly address medical or disability
benefits.

       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). Thus, the
parties cannot confer subject matter jurisdiction on a court by “appearance, plea, consent,
silence, or waiver.” Dishmon v. Shelby State Cmty. Coll., 15 S.W.3d 477, 480 (Tenn. Ct.
App. 1999). 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) (2015). Prior law permitted a party aggrieved by an
interlocutory order to seek a discretionary appeal under Rules 9 and 10 of the 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. Thus, provided an appeal is properly perfected, we are
compelled by statutory mandate to resolve the appeal.

       At issue in the present case is whether an interlocutory order that does not
specifically address disability or medical benefits is a type of order that may be appealed.
Stated differently, does this Board have the authority to review interlocutory orders that
do not grant or deny disability or medical benefits? The answer to this important

                                             4
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.

        In contrast to the broad grant of authority in section 50-6-217(a)(1), other parts of
the statute address appeals of certain types of orders. Specifically, section 50-6-217(a)(2)
describes the manner in which an order “for temporary disability or medical benefits or
an order either awarding permanent disability or medical benefits or denying a claim for
permanent disability or medical benefits” may be appealed to this Board. That subsection
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) within the context of the
types of orders described in section 50-6-217(a)(2). None of these statutory provisions
contains language that precludes appellate review of other types of orders as
contemplated in section 50-6-217(a)(1).3

        Words in a statute must be given their plain and ordinary meaning in light of the
context in which they are used. Shore v. Maple Lane Farms, LLC, 411 S.W.3d 405, 420
(Tenn. 2013). Moreover, courts must avoid a construction that unduly restricts or
expands the meaning of the language used, as every word is presumed to have meaning
and purpose. Id. Applying these principles to section 50-6-217, we conclude that a party
may appeal to this Board an interlocutory order other than one granting or denying
medical or disability benefits. See Tenn. Comp. R. & Regs. 0800-02-22-.01 (2015)
(“Any party may appeal any order of a workers’ compensation judge by filing a notice of
appeal.”) (emphasis added). Accepting Employer’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(a)(1) 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.”).



3
  Tenn. Comp. R. & Regs. 0800-02-21-.02(16) (2015) defines an interlocutory order as one that “awards
or denies temporary disability or medical benefits following a review of the submitted material, or a
hearing if one is convened.” This definition is consistent with the way in which the term “interlocutory
order” is used in section 50-6-217(a)(2)(A), but it does not address the broader grant of authority to hear
appeals of other types of interlocutory orders as expressed in Tennessee Code Annotated section 50-6-
217(a)(1) and Tenn. Comp. R. & Regs. 0800-02-22-.01 (2015). In considering the plain and ordinary
meaning of the language at issue, we note that an interlocutory order is one that “does not finally
determine a cause of action but only decides some intervening matter pertaining to the cause, and which
requires further steps to be taken in order to enable the court to adjudicate the cause on the merits.”
Black’s Law Dictionary 815 (6th ed. 1990).


                                                    5
        We emphasize that today’s decision should not be viewed as license to appeal pre-
trial orders merely because that option exists. As our Supreme Court has observed many
times, parties should not be required to endure the hassle and expense of baseless
litigation. See, e.g., Clark v. Nashville Mach. Elevator Co., 129 S.W.3d 42, 50 n.4 (Tenn.
2004). Nor should appellate courts be required to waste time and resources on appeals
that have no realistic chance of success. Davis v. Gulf Ins. Grp., 546 S.W.2d 583, 586
(Tenn. 1977). Indeed, appellate courts, including this one, are empowered to award
damages against parties whose appeals are frivolous or brought solely for delay. 4 A
frivolous appeal is one that is devoid of merit, Combustion Eng’g, Inc. v. Kennedy, 562
S.W.2d 202, 205 (Tenn. 1978), or one that has no reasonable chance of succeeding,
Davis, 546 S.W.2d at 586.

       Although we are mindful that care should be taken to avoid discouraging
legitimate appeals, we are also aware that “appellate courts should not be timid about
imposing penalties for frivolous appeals when there is raised no legitimate factual or legal
issue.” Ferrell v. APAC-Tennessee, Inc., No. M1999-02260-WC-R3-CV, 2000 Tenn.
LEXIS 722, at *9 (Tenn. Workers’ Comp. Panel Dec. 1, 2000). Any other approach
would be inconsistent with the legislature’s mandate that the workers’ compensation
system be administered in an “equitable, expeditious, and efficient” manner. Tenn. Code
Ann. § 4-3-1409(b)(2)(A) (2014). Thus, “[w]here there is no reasonable basis for appeal,
penalties should be vigorously applied by the appellate court if the legislative intent is to
be given life.” Ferrell, 2000 Tenn. LEXIS 722, at *9-10.

                                Rules of Appellate Procedure

        Before leaving this issue, we must address Employer’s argument that Employee
failed to follow “controlling procedural rules” by securing the trial court’s permission as
a prerequisite for appealing. Employer relies upon Rule 9 of the Tennessee Rules of
Appellate Procedure, which requires a party seeking to appeal an interlocutory order to
obtain the permission of both the trial and appellate courts. Tenn. R. App. P. 9(a).

      By their own terms, the Tennessee Rules of Appellate Procedure apply to
proceedings before the Supreme Court, Court of Appeals, and Court of Criminal Appeals.
Tenn. R. App. P. 1 (“These rules shall govern procedure in proceedings before the

4
  Tenn. Code Ann. § 27-1-122 (“When it appears to any reviewing court that the appeal . . . was frivolous
or taken solely for delay, the court may, either upon motion of a party or of its own motion, award just
damages against the appellant, which may include, but need not be limited to, costs, interest on the
judgment, and expenses incurred by the appellee as a result of the appeal.”); Tenn. Code Ann. § 50-6-
225(d)-(e) (“When a reviewing court determines . . . that the appeal . . . is frivolous, a penalty may be
assessed by the court, without remand, against the appellant for a liquidated amount.”); Tenn. Comp. R. &
Regs. 0800-02-22-.04(6) (2015) (“When it appears to the appeals board that an appeal was frivolous or
taken solely for delay, the appeals board may, either upon motion of a party or of its own motion, award
expenses, including reasonable attorney’s fees, incurred by the appellee as a result of the appeal.”).
                                                   6
Supreme Court, Court of Appeals, and Court of Criminal Appeals.”). Thus, these rules,
while instructive, do not control the appellate process before this Board. Moreover, as
explained above, under the statutory scheme currently in place, appeals to this Board are
of right, and there is no statutory or other provision that requires a party to secure the trial
court’s permission before appealing to this Board. Consequently, we reject Employer’s
argument that Employee’s appeal must fail because he did not first obtain the trial court’s
permission.

                                              B.

                               Setting the Case for a Hearing

       Having decided that this appeal is properly before us, we turn to Employee’s
contention that the trial court erred in ordering a hearing instead of deciding the issues
based on the papers alone. As noted above, the trial court ruled that a hearing was
warranted because notice and causation were issues needing to be resolved, that material
facts were in dispute, and that more information was required to determine if benefits
should commence prior to trial.

       Employee maintains that the trial court’s decision to set the case for a hearing has
“absolutely no basis in law or fact” and, “unbelievably, despite [Employer’s] obvious
delay tactic,” the trial court declined to rule based solely on the record. According to
Employee, the trial court’s ruling is a “travesty of justice” because it runs afoul of the
remedial purpose of the workers’ compensation statutes. We disagree.

        An important feature of the Reform Act was to make clear that an employee can
request that the Court of Workers’ Compensation Claims order the commencement of
disability or medical benefits prior to trial. Specifically, Tennessee Code Annotated
section 50-6-239(d)(1) (2015) provides that, if requested, disputes concerning temporary
disability benefits and/or medical benefits may be heard, at the judge’s discretion, on an
expedited basis, after which the judge will enter an interlocutory order concerning an
injured worker’s entitlement to benefits. In addition, “the judge shall have discretion to
either set the matter for a hearing or enter an interlocutory order based on a review of the
file upon determining that no additional information is needed.” Tenn. Comp. R. &
Regs. 0800-02-21-.14(1)(c) (2015).

       When an employee requests an award of benefits prior to trial, the trial judge has
the authority to “issue an interlocutory order either awarding or denying temporary
disability or medical benefits based on a review of the documents submitted and without
convening a formal hearing.” Tenn. Comp. R. & Regs. 0800-02-21-.02(13) (2015). See
also Tenn. Code Ann. § 50-6-239(d)(2) (“A workers’ compensation judge is not required
to hold a full evidentiary hearing before issuing an interlocutory order for temporary
disability or medical benefits.”). However, the judge also has the “discretion to convene

                                               7
a hearing of a motion for temporary disability or medical benefits if the judge determines
that convening a hearing is necessary to determine the issues presented.” Tenn. Comp. R.
& Regs. 0800-02-21-.02(13) (2015). Indeed, the judge has the discretion to conduct an
evidentiary hearing even if both parties agree to submit the dispute for a determination on
the record. Tenn. Comp. R. & Regs. 0800-02-21-.14(2)(a) (2015).

       These statutory and regulatory provisions leave no doubt that a determination
regarding benefits prior to trial may be conducted on the record or in person at the
judge’s discretion. As noted above, the general assembly has expressed its intent that the
workers’ compensation system be administered in an “equitable, expeditious, and
efficient” manner. Tenn. Code Ann. § 4-3-1409(b)(2)(A) (2014). See also Tenn. Comp.
R. & Regs. 0800-02-21-.01 (2015) (The rules governing hearing procedures are intended
to “provide for an efficient and expedient resolution of issues within the jurisdiction of
the [Bureau].”). A judge’s discretion whether to hold a hearing is an important
component of effectuating the intent of the general assembly as reflected in this statute.
As such, absent an abuse of discretion or a clear violation of the other criteria found in
section 50-6-217(a)(3), the trial court’s decision will not be disturbed on appeal.

        It is well-established that the “abuse of discretion standard does not allow the
appellate court to substitute its judgment for that of the trial court, and we will find an
abuse of discretion only if the 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) (citations omitted). In
reviewing a trial court’s exercise of discretion, we presume that the trial court’s decision
is correct and review 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, No. 2014-06-0069, 2015 TN Wrk. Comp. App. Bd.
LEXIS 18, at *17 (Tenn. Workers’ Comp. App. Bd. July 2, 2015). That said,
discretionary 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).

        In ordering a hearing, the trial court reasoned that there were multiple unresolved
issues in the case, including notice and causation, that material facts were disputed, and
that the court needed additional information to determine whether Employee was likely to
prevail at a hearing on the merits. We have no difficulty concluding that the trial court
did not abuse its discretion in setting the case to be heard instead of making a decision
based on the record alone.




                                             8
                            Remedial Application of the Law

       Before concluding, we must address Employee’s contention that the trial court’s
decision should be overturned because it is inconsistent with a remedial application of the
law. Employee’s position is that the workers’ compensation statutes are remedial in
nature designed to provide timely benefits to an injured worker and that the trial court’s
decision represents a “travesty of justice” by not fulfilling this purpose.

        Prior to the Reform Act, Tennessee courts interpreted and applied the workers’
compensation statutes liberally in favor of employees. Crew v. First Source Furniture
Grp., 259 S.W.3d 656, 664 (Tenn. 2008). The practical effect of this approach was that
employees received the benefit of the doubt in close cases. However, for injuries
occurring on or after July 1, 2014, courts may no longer apply a liberal or remedial
interpretation of the workers’ compensation statutes, but must apply the law “fairly,
impartially, and in accordance with basic principles of statutory construction.” Tenn.
Code Ann. § 50-6-116 (2015). Also, the legislature has made it clear that the workers’
compensation statutes “shall not be construed in a manner favoring either the employee
or the employer.” Id. Thus, Employee’s argument that the trial court’s decision should
be reversed because it is inconsistent with a remedial application of the law has been put
to rest by the Reform Act.

                                       Conclusion

        For the foregoing reasons, we hold that this appeal is properly before us.
Accordingly, Employer’s motion to dismiss the appeal is denied. We further find that the
trial court did not abuse its discretion in setting Employee’s request for benefits for a
hearing. The trial court’s decision is affirmed and the case is remanded.




                                            9
                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD

James Yarbrough                                          )   Docket No. 2015-08-0574
                                                         )
v.                                                       )
                                                         )    State File No. 48061-2015
Protective Services Co., Inc.                            )


                                     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 25th day of January, 2016.
 Name                    Certified   First Class   Via   Fax       Via     Email Address
                         Mail        Mail          Fax   Number    Email

 Andrew C. Clarke                                                     X    aclarke@accfirm.com
 Devin Williams                                                       X    devin.williams@petersonwhite.com
 Jim Umsted, 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: Matthew.Salyer@tn.gov
