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

Jeffery Tennyson                             ) Docket No. 2019-07-0218
                                             )
v.                                           ) State File No. 62368-2018
                                             )
Saver’s Painting and                         )
Wallcovering, LLC, et al.                    )
                                             )
                                             )
Appeal from the Court of Workers’            )
Compensation Claims                          )
Allen Phillips, Judge                        )

                   Affirmed in Part, Reversed in Part, and Remanded

This interlocutory appeal concerns a discovery dispute. Approximately eight months
after the employee sustained an injury at work, the employer filed a petition for benefit
determination and a motion requesting the court to compel the employee to submit to a
pre-mediation discovery deposition. The employer contended the deposition was needed
because of disputed issues involving causation and the employee’s alleged need for
additional medical care. The employee objected to the deposition but expressed a
willingness to submit to a one-hour deposition. The trial court decided the motion on the
written materials, concluding the employer was entitled to take the employee’s
deposition, but limited the deposition to one hour. The employer has appealed, asserting
the trial court abused its discretion in limiting the deposition to one hour. We affirm the
trial court’s conclusion that the employer is entitled to take the employee’s deposition,
reverse the trial court’s one-hour limitation on the duration of the deposition, 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.

Peter Frech, Brentwood, Tennessee, for the employer-appellant, Saver’s Painting and
Wallcovering, LLC

Charles Holliday, Jackson, Tennessee, for the employee-appellee, Jeffery Tennyson



                                            1
                             Factual and Procedural Background

       On August 15, 2018, Jeffery Tennyson (“Employee”) suffered injuries when he
fell while working as a commercial painter for Saver’s Painting and Wallcovering, LLC
(“Employer”). Employer accepted the claim as compensable and began providing
medical benefits. 1 Employee received authorized medical care from Dr. John Brophy.
On November 12, 2018, Dr. Brophy signed a Final Medical Report Form C-30A
indicating that Employee had reached maximum medical improvement (“MMI”) on
November 7, 2018; that Employee was able to return to work without restrictions as of
the date he reached MMI; that the doctor did not anticipate the need for future medical
treatment for Employee’s injuries; and that Employee did not sustain a permanent
impairment as a result of his work-related injuries. On December 10, 2018, Dr. Samuel
Chung conducted an independent medical evaluation and stated in his report that
Employee retained fifteen percent impairment as a result of his work injuries.

        In February 2019, Employer’s attorney sent interrogatories to Employee, who had
also retained an attorney. The following month, Employee’s attorney advised Employer
that Employee’s interrogatory responses would be coming soon and that Employee was
continuing to experience symptoms and wanted to return to a doctor. Following
Employer’s receipt of Employee’s interrogatory responses in April 2019, Employer
requested Employee’s deposition, advising Employee’s attorney that “based on Dr.
Brophy’s opinions, [Employer] will not consider authorizing further medical care.”
Employer stated that it “would like the opportunity to depose [Employee]” and requested
that Employee’s attorney provide available dates for Employee’s deposition. Employee’s
attorney objected to his client being deposed before the parties engaged in mediation but
agreed “to a [one] hour deposition.” Employer responded on April 24, 2018 by filing a
petition for benefit determination, which stated that “Employee’s counsel will not allow
his client to be deposed and is interfering with the discovery process.” Employer filed a
motion to compel discovery with its petition in which Employer requested that the trial
court compel Employee “to attend a deposition upon oral examination.”

       In a response to Employer’s motion, Employee’s attorney stated that he had
requested mediation in January 2019, after which he was advised of the involvement of
Employer’s attorney in the claim, which was followed by Employer’s submission to
Employee of the written discovery requests. Employee’s response to the request for his
deposition asserted the purpose of mediation is “to limit time and expense for both
parties,” and the response further stated that a deposition should not be allowed, but that
“Employee stands by a willingness to submit to a limited one hour deposition for
pertinent issues as may be deemed necessary by Employer’s counsel.”


1
 The trial court has not conducted an evidentiary hearing. We have gleaned the pertinent facts from the
parties’ pleadings, attachments to their pleadings, and their briefs on appeal.

                                                  2
       There was no discovery plan and no scheduling order in place when the trial court
ruled on Employer’s motion. The court concluded that it did not need to hear arguments
to decide the discovery dispute and entered an order granting Employer’s motion to
compel a deposition. The court limited the deposition to one hour, explaining that
Employer “already has answers to its written discovery that should provide guidance for
a focused examination” of Employee. Employer has appealed.

                                          Standard of Review

        A trial court’s decision regarding pretrial discovery is discretionary and an
appellate court’s review of such a decision applies an “abuse of discretion” standard of
review. Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of Nashville, 154 S.W.3d 22, 42
(Tenn. 2005); Benton v. Snyder, 825 S.W.2d 409, 416 (Tenn. 1992); Loveall v. Am.
Honda Motor Co., 694 S.W.2d 937, 939 (Tenn. 1985). An abuse of discretion is found 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.” Konvalinka v. Chattanooga-Hamilton
Cnty. Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008). “Whether a court applied an
incorrect legal standard is a question of law that is reviewed de novo.” Funk v. Scripps
Media, Inc., 570 S.W.3d 205, 210 (Tenn. 2019). We are required to “review a [trial]
court’s discretionary decision to determine (1) whether the factual basis for the decision
is properly supported by the evidence in the record, (2) whether the [trial] court properly
identified and applied the most appropriate legal principles applicable to the decision, and
(3) whether the [trial] court’s decision was within the range of acceptable alternative
dispositions.” Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524-25 (Tenn. 2010) (internal
citations omitted). The abuse of discretion standard does not permit us to merely
substitute our judgment for that of the trial court. See Discover Bank v. Morgan, 363
S.W.3d 479, 487 (Tenn. 2012).

                                                 Analysis

        Employer raises a single issue on appeal, contending the trial court abused its
discretion by limiting Employee’s deposition to one hour.2 Employer asserts that, absent
an adequate showing from Employee of specific facts justifying such a limitation, the
limitation was inappropriate and an abuse of the court’s discretion. We agree.

      When the trial court ruled on Employer’s motion, the discovery process in the
Court of Workers’ Compensation Claims was governed by Tenn. Comp. R. & Reg. 0800-
02-21-.16 (2018). 3 The regulation provided that when efforts to achieve discovery
2
    Whether it is appropriate for Employer to depose Employee has not been raised as an issue on appeal.
3
  The regulations were amended effective August 2019. The regulation governing the discovery process
is now located at Tenn. Comp. R. & Regs. 0800-02-21-.17 (2019).

                                                      3
informally failed, “discovery shall be sought and effectuated in accordance with the
Tennessee Rules of Civil Procedure unless these rules provide an alternate procedure.”
Tenn. Comp. R. & Regs. 0800-02-21-.16(1). Addressing depositions, the regulation
stated that “[a]ll depositions shall be taken within the timeframe provided by the
discovery plan in the scheduling order.” Tenn. Comp. R. & Regs. 0800-02-21-.16(5). 4
Further, the regulation provided that depositions “may be taken on oral examination or
upon written questions in the manner provided by the Tennessee Rules of Civil
Procedure,” and that “[n]o oral deposition shall continue for more than four (4) hours.”
Tenn. Comp. R. & Regs. 0800-02-21-.16(5)(a), (c).

        Employee’s position on appeal is that “a one hour deposition . . . is entirely
appropriate under the circumstances and is in no way an abuse of discretion.” We begin
our analysis of whether the trial court abused its discretion in limiting the deposition to
one hour with the Tennessee Rules of Civil Procedure. Rule 26.02 contemplates that a
trial court may limit the scope of discovery and provides that the “frequency or extent” of
the discovery methods

       shall be limited by the court if it determines that: (i) the discovery sought is
       unreasonably cumulative or duplicative or is obtainable from some other
       source that is more convenient, less burdensome or less expensive; (ii) the
       party seeking discovery has had ample opportunity by discovery in the
       action to obtain the information sought; or, (iii) the discovery is unduly
       burdensome or expensive, taking into account the needs of the case, the
       amount in controversy, limitations on the parties’ resources, and the
       importance of the issues at stake in the litigation.

Tenn. R. Civ. P. 26.02(1).

        Rule 26.03 authorizes the court in which the action is pending to “make any order
which justice requires to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.” Importantly, the rule provides for such
protections “[u]pon motion by a party or by the person from whom discovery is sought,
and for good cause shown.” Tenn. R. Civ. P. 26.03. In the instant case, Employee did
not file a motion or other pleading requesting a protective order as contemplated in Rule
26.03. Rather, Employee’s response to the motion to compel stated that Employer was
“requesting essentially all of the same discovery methods that would take place after a
claim is filed,” and the response asserted “there is no legitimate basis for an open ended
deposition . . . prior to a[n] initial mediation even taking place.” In the trial court,
Employee contended the applicable discovery regulation “dictates that discovery may not

4
 The regulation was amended to provide that “[a]ll depositions must be taken within the timeframe in the
schedulLQJ order, or if no scheduling order exists, within the time allowed by the Tennessee Rules of
Civil Procedure.”
                                                   4
take place prior to a Petition for Benefit Determination being filed.” Although Employee
has not filed such a petition, Employer filed a petition on April 24, 2019, simultaneously
with its motion to compel discovery. Employee’s response to the motion in the trial court
asserted that “no deposition should be allowed,” but further contended that “Employee
stands by a willingness to submit to a limited one hour deposition for pertinent issues as
may be deemed necessary by Employer’s counsel.”

       Employee’s response to the motion to compel discovery made no effort to show
“annoyance, embarrassment, oppression, or undue burden or expense” as contemplated in
Rule 26.03. The response did not suggest or show that the deposition should be limited
for any of the reasons specified in Rule 26.02(1). Instead, Employee argued that
permitting pre-mediation discovery was inconsistent with the general goals of the
workers’ compensation system. On appeal, Employee asserts “[i]t is only if a claim is
not resolved [in the initial mediation stage with the Bureau] that a claim is essentially
transferred to the Court of Workers’ Compensation Claims,” and that “[t]o allow
protracted discovery even before the initial mediation takes place would defeat the entire
purpose of the workers’ compensation act in attempting to limit parties[’] litigation costs
and expenses.”

        Neither the Bureau’s regulations addressing discovery nor the Tennessee Rules of
Civil Procedure condition depositions or any other method of discovery on the parties
having participated in mediation. Indeed, both the regulations in effect at the time the
trial court ruled on Employer’s motion to compel discovery and the regulations currently
in effect provide that interrogatories may be served on any party at any time after a
petition for benefit determination has been filed. The regulations do not condition the
taking of depositions on the parties having participated in mediation and provide that
depositions are to be taken in the manner provided by the Tennessee Rules of Civil
Procedure. See Tenn. Comp. R. & Reg. 0800-02-21-.16(5)(a) (2016); 0800-02-21-
.17(3)(a) (2019). The 2016 regulation requiring depositions to be taken within the
timeframe of a scheduling order was intended to prohibit depositions from being taken
after the expiration of the deadline provided in the scheduling order, which is consistent
with the regulation as amended in 2019. See Tenn. Comp. R. & Reg. 0800-02-21-
.17(3)(a) (2019) (“All depositions must be taken within the timeframe in the scheduling
order, or if no scheduling order exists, within the time allowed by the Tennessee Rules of
Civil Procedure.”). Moreover, with certain exceptions specifically addressed in Rule
30.01, the Tennessee Rules of Civil Procedure allow depositions to be taken “[a]fter
commencement of the action,” and, under certain circumstances, both before an action is
commenced and pending appeal. See Tenn. R. Civ. P. 27.01 and 27.02.

       The Bureau’s regulations provide a four-hour limit on the length of oral
depositions. See Tenn. Comp. R. & Reg. 0800-02-21-.16(5)(c) (2016); 0800-02-21-
.17(3)(c) (2019). In its order granting Employer’s motion to compel discovery, the trial
court noted that “[t]he only limitation on the length of a deposition is four hours.”

                                            5
Nonetheless, the court limited Employer’s examination of Employee to one hour, stating
that “[i]n so holding, the Court considers that [Employer] already has answers to its
written discovery that should provide guidance for a focused examination of
[Employee].” Absent specific findings by the trial court constituting “good cause shown”
to protect Employee from “annoyance, embarrassment, oppression, or undue burden or
expense” as contemplated in Rule 26.03, we hold that the trial court’s reasoning for
imposing the one hour limitation on Employee’s deposition without identifying a
sufficient factual basis for the limitation resulted in an injustice to Employer and
constituted an abuse of the trial court’s discretion.5

                                              Conclusion

       We affirm the trial court’s decision to allow Employer to take Employee’s
deposition and reverse the trial court’s one-hour limit placed on the deposition. The case
is remanded. Costs on appeal are taxed to Employee.




5
  If, as is argued by Employee, restrictions should be placed on pre-mediation discovery, it is the role of
either the General Assembly to enact such restrictions or the Bureau’s Administrator to promulgate rules
addressing the restrictions.
                                                    6
                  TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                    WORKERS’ COMPENSATION APPEALS BOARD
                     (HEARD OCTOBER 1, 2019, AT NASHVILLE)

Jeffery Tennyson                                      )      Docket No. 2019-07-0218
                                                      )
v.                                                    )      State File No. 62368-2018
                                                      )
Saver’s Painting and                                  )
Wallcovering, LLC, 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 16th day
of October, 2019.

 Name                              Certified   First Class   Via   Via     Sent to:
                                   Mail        Mail          Fax   Email
 Charles L. Holliday                                                 X     chuckh@garretylaw.com
                                                                           ghayes@garretylaw.com
 Jay DeGroot                                                         X     jdegroot@garretylaw.com
 Peter Frech                                                         X     ppfrech@mijs.com
 Christopher R. Brooks                                               X     crbrooks@mijs.com
 Allen Phillips, 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
