                                                                                        FILED
                                                                                   August 31, 2016
                                                                                        TENNESSEE
                                                                                  WORKERS ' COMPENSATION
                                                                                     APPEALS BOARD

                                                                                      Time, 8 :00 A .M .



            TENNESSEE BUREAU OF WORKERS' COMPENSATION
               WORKERS' COMPENSATION APPEALS BOARD


Debbie Morgan                               )   Docket No. 2016-08-0270
                                            )
v.                                          )
                                            )   State File No. 63707-2015
Macy's, et al.                              )
                                            )
                                            )
Appeal from the Court of Workers'           )
Compensation Claims                         )
Allen Phillips, Judge                       )


                           Affirmed in Part, Vacated in Part,
                           and Remanded - August 31, 2016

 In this interlocutory appeal, the employee tripped and fell onto her right shoulder while
 attempting to avoid a cart as she exited a stockroom. The employer provided medical
treatment and, after the employee completed a course of conservative treatment for neck
pain, the authorized physician recommended a cervical fusion. The employer submitted
the recommended surgery for utilization review, and the reviewing physician declined to
certify the surgery as medically necessary. The employee did not appeal the utilization
review denial to the state's utilization review program, but instead filed a request for
expedited hearing. The trial court ruled that an employee need not pursue an appeal of a
utilization review denial to the medical director as a prerequisite to filing a request for
expedited hearing. Upon consideration of the medical records of the treating physician,
including a report admitted into evidence over the objection of the employer, the trial
court determined that the surgery was medically necessary and ordered the employer to
pay for the surgery. Additionally, the trial court denied the employer's post-hearing
motion to add an additional defense to the dispute certification notice. The employer
appealed. Upon careful consideration of the record, we affirm in part and vacate in part
the decision of the trial court, and we remand the case for further proceedings as may be
necessary.

Judge Timothy W. Conner delivered the opinion of the Appeals Board, in which Judge
Marshall L. Davidson, III, joined. Judge Hensley filed a separate concurring opinion.


                                            1
    J. Allen Callison, Brentwood, Tennessee, for the employer-appellant, Macy's

    Andrew L. Wener, Memphis, Tennessee, for the employee-appellee, Debbie Morgan

                                Factual and Procedural Background

       Debbie Morgan ("Employee"), a resident of Shelby County, Tennessee, worked
for Macy's ("Employer") as a sales associate. On July 9, 2015, she was exiting a
stockroom when she tripped and fell while attempting to avoid a cart. She landed on her
right shoulder and felt immediate pain in her shoulder, neck, and arm. She reported the
accident and received authorized medical treatment from Dr. Samuel Schroerlucke at
Tabor Orthopedics. 1 X-rays of the right shoulder revealed no abnormalities, and an EMG
of the right upper extremity was interpreted as normal. X-rays of the cervical spine
showed multi-level degenerative disc disease and an MRI of the cervical spine revealed
right foraminal stenosis at C4-5 and C5-6. Employee completed physical therapy and
underwent an epidural steroid injection, neither of which, according to her testimony,
provided adequate relief from her symptoms. She further testified that she was unable to
use most pain medications due to allergies. In a January 26, 2016 report, Dr.
Schroerlucke commented that if her symptoms did not abate, he would "likely offer her a
C4-C6 ACDF. ' 2 He formally recommended this surgery in a February 2, 2016 report.

        Employer submitted Dr. Schroerlucke's recommendation for surgery to utilization
review pursuant to Tennessee Code Annotated section 50-6-124 (2015). In a February
24, 2016 utilization review report, Dr. Robert Winans, a Tennessee-licensed, board-
certified orthopedic surgeon, expressed his opinion that the recommended treatment was
not medically necessary in accordance with treatment guidelines set forth in the Official
Disability Guidelines ("ODG"). He outlined several instances in which the ODG
treatment guidelines require certain findings which he felt were not documented in Dr.
Schroerlucke's records.

        Neither Employee nor Dr. Schroerlucke appealed the utilization review denial to
the Bureau of Workers' Compensation's utilization review program. Instead, Employee
filed a petition for benefit determination and, after the issuance of a dispute certification
notice, a request for expedited hearing. The dispute certification notice indicated that
"compensability" and "medical benefits" were disputed issues. After being given an
opportunity to review the disputed issues listed on this form prior to its filing with the
trial court, Employer submitted correspondence to the mediator asking that the issues be
more fully described as "compensability - based on the nature of the incident itself and
the primarily arising out of requirement - and the medical necessity of the fusion as
1
  The record is silent regarding whether Employer provided a panel of physicians from which Employee
selected Dr. Schroerlucke, but the parties agree he was an authorized physician.
2
    "ACDF" is an acronym for anterior cervical discectomy and fusion.

                                                     2
    recommended by the [authorized treating physician] pursuant to Tenn. [Comp.] R. &
    Regs. 0800-02-06 and 0800-02-25."

       During the course of the evidentiary hearing, Employer initially indicated "there is
a compensability issue." However, after testimony was completed and all evidence was
submitted, Employer acknowledged that, for purposes of this expedited hearing, the
evidence was sufficient to support a finding that Employee established a likelihood of
prevailing on the issue of compensability.

       Following the hearing, Employer filed a "Motion to Expand the Scope of the
Dispute Certification Notice to Include Defense for Idiopathic Injury." Thereafter, in its
expedited hearing order, the trial court determined: (1) it had jurisdiction to consider the
medical necessity of the recommended treatment despite Employee's decision not to
appeal the utilization review denial to the Bureau's utilization review program; (2) an
employee need not appeal a utilization review denial to the Bureau's utilization review
program as a prerequisite to seeking relief in the Court of Workers' Compensation
Claims; (3) an employer has the burden of rebutting the medical necessity of
recommended treatment by clear and convincing evidence; (4) Employee in this case
came forward with sufficient evidence that the recommended treatment was medically
necessary; (5) Employee has not established entitlement to temporary disability benefits;
and (6) Employer's motion to add an idiopathic injury defense should be denied.
Employer filed its notice of appeal and, thereafter, Employee filed a motion to dismiss
Employer's appeal and position statement. 3

                                        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) (2015). 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' compensationjudge:

         (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; or
3
  Although initially identifying subject matter jurisdiction and whether the presumption of medical
necessity was rebutted as issues in its Notice of Appeal, Employer subsequently abandoned those issues
either explicitly (by filing a "Motion to Dismiss Section One of its Appeal" that encompassed the former
issue) or implicitly (by failing to offer any argument with respect to the latter issue in its brief).

                                                   3
       (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.

                                         Analysis

       Employer's Post-Hearing Motion to Amend the Dispute Certification Notice

       Employer argues that the trial court erred in denying its post-hearing "Motion to
Expand the Scope of the Dispute Certification Notice to Include Defense for Idiopathic
Injury." We disagree.

        The manner in which hearings are conducted in the Court of Workers'
Compensation Claims is governed by Tennessee Code Annotated section 50-6-239
(2015). Any party seeking to resolve a disputed issue is required to file a request for
hearing within sixty days after a dispute certification notice has been filed. Tenn. Code
Ann. § 50-6-239(a) (2015). At such a hearing, the trial court can consider "only issues
that have been certified within a dispute certification notice." Tenn. Code Ann. § 50-6-
239(b)(l). To present other issues to the trial court requires permission of the trial court,
which can be granted "only upon finding that: (A) The parties did not have knowledge of
the issue prior to the issuance of the dispute certification notice and could not have
known of the issue despite reasonable investigation; and (B) Prohibiting presentation of
the issue would result in substantial injustice to the petitioning party." Tenn. Code Ann.
§ 50-6-239(b )(2) (emphasis added).

       In its expedited hearing order, the trial court denied Employer's motion, which
was filed after the testimony was complete and all evidence was submitted. The trial
court concluded that Employer "stipulated to causation at the conclusion of the Expedited
Hearing, and such stipulation renders any idiopathic defense moot." The court also
concluded that Employer did not present sufficient evidence to satisfy the requirements of
Tennessee Code Annotated section 50-6-239(b )(2).

        Based upon our review of the record, we find that the trial court did not abuse its
discretion in denying Employer's motion at this stage of the litigation. Employer did not
establish that it did not know "and could not have known" of a potential idiopathic injury
defense at the time the dispute certification notice was issued. However, we respectfully
disagree with the trial court that Employer "stipulated to causation" or otherwise bound
itself to a position with respect to the issue of causation for the duration of this case.
Near the conclusion of the hearing, when the trial court questioned counsel for Employer
regarding its defenses, counsel was careful to state that while there was sufficient

                                             4
    evidence supporting a finding of causation for purposes of the expedited hearing, he was
    "not stipulating to it." As the expedited hearing was interlocutory in nature and was
    conducted at a time when discovery remained incomplete, it would be improper to
    conclude that Employer is precluded from seeking to amend the dispute certification
    notice prior to the final compensation hearing to add additional defenses pursuant to any
    applicable rule or statute. Thus, although Employer did not present sufficient reasons to
    add an "idiopathic injury" defense to its argument in opposition to this request for
    expedited hearing, nothing precludes it from seeking to assert such a defense going
    forward. In this particular instance, however, Employer was properly prevented from
    injecting a new legal theory for the trial court's consideration after the proof was closed,
    after arguments were made, and after the hearing concluded.

                                 Admissibility of Medical Records

        At the beginning of the evidentiary hearing, the parties discussed with the trial
court the documents that were to be offered into evidence. Counsel for Employee
discussed the clinical records of Dr. Schroerlucke, work status forms, and other
documents that he described as "certified records." 4 Counsel for Employer objected to
the introduction of those records since Employee had not filed an exhibit list prior to the
hearing. Cf Tenn. Comp. R. & Regs. 0800-02-21-.16(6)(a) (2015). Employer also
offered into evidence the utilization review report of Dr. Winans. The trial court
determined that all medical records were admissible if they "bear a signature" and that an
electronic signature satisfies the signature requirement. The trial court also found that the
records of Dr. Schroerlucke were admissible because they were considered by Dr.
Winans in his utilization review report and were therefore relevant to the basis of Dr.
Winans' expert opinion.

       Later in the hearing, Employer objected to the introduction of a specific record
from Dr. Schroerlucke dated March 15, 2016 because it was not included within the
scope of the medical record certification dated March 10, 2016. 5 After examining the
report, the trial court noted that it contained the physician's initials at the end of the
record and stated, "that's good enough for electronic signature under our ... standards."

      The admissibility of medical records is controlled, in part, by the Mediation and
Hearing Procedures of the Tennessee Department of Labor and Workforce Development,
which provide that "[a]ll medical records shall be exchanged among the parties in the


4
 In its brief, Employer acknowledges that Employee submitted the records of Tabor Orthopedics to the
mediator with a medical certification form dated March 10, 2016, but that form was not included with the
exhibit introduced at the hearing and was not included in the record.
5
 While Employer's counsel indicated during the hearing the disputed record was dated March 17, 2016, it
appears that he was referring to the March 15, 2016 record.

                                                   s
manner provided by these rules." Tenn. Comp. R. & Regs. 0800-20-21-.16(6) (2015).
The rule further requires that:

       (a)    All medical records ... shall be filed with the [Bureau] no later than
              (10) business days before the scheduled hearing date. Except for
              good cause shown, failure to comply may result in the exclusion of
              any medical record that is not filed timely . . . . Absent good cause
              as determined by a workers' compensation judge, no other medical
              records shall be filed with the [Bureau].

       (b)    All medical records signed by a physician or accompanied by a
              certification that the records are true and accurate which has been
              signed by the medical provider or custodian of records shall be
              admissible.

Tenn. Comp. R. & Regs. 0800-20-21-.16(6) (emphasis added). Also, in its Practices and
Procedures, the Court of Workers' Compensation Claims advises parties that "[a]ffidavits
and other evidence filed with the mediator prior to the request for expedited hearing do
not need to be resubmitted." Tenn. Ct. of Workers' Comp. Claims, Prac. & Proc, §
7.02(A).

        In the present case, it is undisputed that Employee submitted certain medical
records from Tabor Orthopedics to the mediator prior to the date the request for expedited
hearing was filed. Moreover, Employer agreed that these records were accompanied by a
medical certification form dated March 10, 2016 in compliance with Tenn. Comp. R. &
Regs. 0800-20-21-.16(6)(b). Given that the trial court's Practices and Procedures advise
parties not to refile records which have already been submitted to the mediator, it was not
an abuse of discretion for the trial judge to admit the medical records from Tabor
Orthopedics dated on or prior to the date of the medical certification form despite the fact
that they were not submitted with an exhibit list and were not refiled with the trial court
clerk at least ten days prior to the scheduled hearing.

       However, the record of Dr. Schroerlucke dated March 15, 2016 did not fall within
the scope of the medical certification form dated March 10, 2016. Thus, it was neither
"signed by a physician" nor "accompanied by a certification" as required by Rule 0800-
02-21-.l 6( 6)(b ). We respectfully disagree with the trial court that a mere typed notation
which purports to be a physician's initials at the end of a record is sufficient, standing
alone, to satisfy requirements for admissibility. The purpose of the rule is to provide an
efficient and cost-saving means of introducing medical records as evidence when such
records have basic indicia of reliability. The rule is not burdensome, requiring either a
physician's signature on the record itself or an accompanying certification form signed by
a custodian of the records. The trial court concluded that an electronic signature
complies with the rule and that a physician's typed initials at the end of the document are

                                             6
the equivalent of an electronic . signature. Without fully resolving the issue of what
constitutes a valid electronic signature, we disagree that mere typed initials at the end of
the document are sufficient. 6

       Therefore, we conclude it was error for the trial court to accept Dr. Schroerlucke's
March 15, 2016 report as evidence at the expedited hearing. Given the trial court's
reliance on Dr. Schroerlucke's records, including the March 15, 2016 report in particular,
in reaching its determination as to medical necessity, it is necessary to vacate that aspect
of the court's decision and remand the case to the trial court for reconsideration in light of
the admissible evidence.

                                Presumption of Medical Necessity

       In light of our finding regarding the admissibility of medical records and its
impact on the issue of the medical necessity of the recommended treatment in this case,
we must also consider the relationship between the newly-adopted medical treatment
guidelines and the presumptions outlined in Tennessee Code Annotated section 50-6-
204(a)(3)(H) and (I). In assessing whether Employee came forward with sufficient
evidence of medical necessity to support an order for the payment of the recommended
surgery, the trial court concluded that the presumption that the authorized physician's
recommended treatment is medically necessary could be overcome only by clear and
convincing evidence. We respectfully disagree.

       In Tennessee Code Annotated section 50-6-204(a)(3)(H), the legislature provided
a presumption of medical necessity for "any treatment recommended by a physician or
chiropractor selected pursuant to this subdivision (a)(3) or by referral, if applicable."
Tenn. Code Ann. § 50-6-204(a)(3)(H) (2015). Thereafter, section 204(a)(3)(1) provides:

        Following the adoption of treatment guidelines pursuant to § 50-6-124, the
        presumption of medical necessity for treatment recommended by a
        physician or chiropractor selected pursuant to this subsection or by referral,
        if applicable, shall be rebuttable only by clear and convincing evidence
        demonstrating that the recommended treatment substantially deviates from,
        or presents an unreasonable interpretation of, the treatment guidelines.

Tenn. Code Ann. § 50-6-204(a)(3)(1). However, the legislature also discussed this
presumption in Tennessee Code Annotated section 50-6-124(h):

6
  An example contained in this record of an acceptable "electronic signature" appears at the end of Dr.
Lee-Sigler's Operative Report dated January 14, 2016, which states, "I authorize my name to be
electronically affixed to this report signifying that I have reviewed and approved the dictated report."
This language is followed by the physician's full typed name. While we do not suggest that this is the
only acceptable format for an electronic signature, we find that it complies with Rule 0800-02-2 l-
.16( 6)(b ).

                                                   7
       Any treatment that explicitly follows the treatment guidelines adopted by
       the administrator or is reasonably derived therefrom, including allowances
       for specific adjustments to treatment, shall have a presumption of medical
       necessity for utilization review purposes. This presumption shall be
       rebuttable only by clear and convincing evidence that the treatment
       erroneously applies the guidelines or that the treatment presents an
       unwarranted risk to the injured worker.

Tenn. Code Ann. § 50-6-124(h) (2015) (emphasis added). The medical treatment
guidelines, which were adopted by the administrator and became effective January 1,
2016, reiterate the language from section 50-6-124(h). See Tenn. Comp. R. & Regs.
0800-02-25-.03(2) (2016).

       Thus, when relevant statutory provisions and the rules governing the medical
treatment guidelines are read in conjunction, it is evident that a trial court can apply one
of two potential presumptions to the issue of medical necessity in any given case. First,
as codified in section 50-6-204(a)(3)(H), treatment recommended by an authorized
physician is presumed medically necessary. While this provision does not specify the
quantum of evidence required to rebut the presumption, which was codified in the 2013
Workers' Compensation Reform Act, Tennessee courts have long acknowledged the
presumption and considered it rebuttable by a preponderance of the evidence. See, e.g.,
Walker v. G. VB.MK Constructors, No. E2015-00346-SC-R3-WC, 2016 Tenn. LEXIS
313 (Tenn. Workers' Comp. Panel May 2, 2016) (trial court's denial of employee's
motion to compel medical treatment affirmed where presumption of medical necessity
afforded the recommended treatment was overcome by a preponderance of the medical
evidence).

       Second, in circumstances where an employee establishes by expert medical
evidence that the recommended treatment "explicitly follows the treatment guidelines" or
"is reasonably derived therefrom, including allowances for specific adjustments to
treatment," then the burden shifts to the employer to rebut the presumption of medical
necessity by clear and convincing evidence. See Tenn. Code Ann. §§ 50-6-124(h),
204(a)(3)(1); Tenn. Comp. R. & Regs. 0800-02-25-.03(2).

        In the present case, Employee did not offer proof at the expedited hearing that the
authorized physician's recommended treatment "explicitly follows the treatment
guidelines" or "is reasonably derived therefrom." A trial court is not in a position to
independently assess an injured worker's symptoms as described in medical records to
determine whether recommended treatment falls within medical treatment guidelines. See
Scott v. Integrity Staffing Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd.
LEXIS 24, at *8 (Tenn. Workers' Comp. App. Bd. Aug. 18, 2015). Therefore, we
conclude that if an employee seeks to take advantage of the presumption as described in
Tennessee Code Annotated section 50-6-124(h) and Rule 0800-02-25-.03(2), then the

                                             8
employee has the initial burden of proving that the recommended treatment "explicitly
follows the treatment guidelines" or that it "is reasonably derived therefrom" as required
by the statute and the rule. Once the employee has met that initial burden, the burden
then shifts to the employer to offer clear and convincing evidence that the treatment
"erroneously applies the guidelines" or that it "presents an unwarranted risk to the injured
worker." Otherwise, if an employee does not establish the criteria as described above,
the employer has the burden to overcome the presumption in favor of the medical
necessity of the authorized physician's recommended treatment by a preponderance of
the evidence.

                               Employee's Motion to Dismiss Appeal

       Subsequent to the filing of Employer's notice of appeal, Employee filed a "Motion
to Dismiss Employer's Appeal and Position Statement." Though some of the issues
raised by Employee in her motion to dismiss the appeal are pretermitted, other issues
merit discussion.

       First, Employee asserts that the trial court erred in denying her motion for
"directed verdict." 7 Specifically, Employee argues that, because Employer did not file a
formal answer to the petition for benefit determination, the trial court "should have
entered a verdict in favor of Employee prior to the proof being taken." Thereafter,
Employee cites several rules of civil procedure that she asserts supports her position that
Employer's failure to file an answer rendered a "directed verdict" appropriate.

       Employee's argument overlooks Tennessee Code Annotated section 50-6-
239(c)(l), which provides that the Tennessee Rules of Civil Procedure and the Tennessee
Rules of Evidence apply to hearings in the Court of Workers' Compensation Claims
"unless an alternate procedural or evidentiary rule has been adopted by the
administrator." Tenn. Code Ann. § 50-6-239(c)(l) (2015). Such rules were adopted and
are found in Tenn. Comp. R & Regs. 0800-02-21. These rules set forth the procedures
for commencing a claim for workers' compensation benefits, conducting mandatory
mediation, identifying disputed issues in a dispute certification notice, and presenting
those disputed issues to a workers' compensation judge for resolution. None of these
rules require the employer to file a formal answer, although employers are given an
opportunity to list defenses to the claim on the dispute certification notice. Thus, to the
extent that these specific rules are in conflict with the Tennessee Rules of Civil
Procedure, the rules adopted by the administrator control. Accordingly, we find no merit
in Employee's argument that she was entitled to a "directed verdict" or judgment on the
7
  Although Employee described her request as one for "directed verdict," a directed verdict as
contemplated in Rule 50 of the Tennessee Rules of Civil Procedure applies only in jury trials and is
offered "at the close of the evidence offered by the opposing party or at the close of the case." Tenn. R.
Civ. P. 50.01. We presume Employee intended to seek a judgment on the pleadings in accordance with
Tennessee Rule of Civil Procedure 12.03.

                                                    9
pleadings because Employer did not file a formal answer to the petition for benefit
determination.

        Employee next asserts that the utilization review report of Dr. Winans was
incorrectly admitted into evidence because it was not "certified." Employee's argument
fails to acknowledge Tenn. Comp. R. & Regs. 0800-02-21-.16(6)(b), which provides that
medical reports "signed by a physician" are admissible. The trial court correctly
addressed this issue in overruling Employee's objection during the expedited hearing.

        Finally, Employee argues that by failing to include an argument regarding whether
the trial court properly applied the presumption of correctness regarding medical
necessity, Employer "has waived an appeal of this [i]ssue, and it should be binding on
this case in the future." As we indicated above, however, the trial court's determination
regarding medical necessity is vacated and the case is remanded to the trial court for
reconsideration of the admissible evidence. Moreover, as discussed in previous cases, an
expedited hearing order is interlocutory in nature, meaning that it is "subject to revision
at any time before the entry of a judgment adjudicating all the claims and the rights and
liability of all the parties." Tenn. R. Civ. P. 54.02. Thus, Employer is not precluded
from further arguing the issue of medical necessity in later hearings. Employee's motion
to dismiss the appeal, to the extent it is actualll a request to dismiss the appeal as
opposed on a brief or position statement, is denied.

       Before concluding, we note that, in his concurrence, our colleague argues that we
should not address issues on appeal unless those issues have been raised by an appealing
party as "independent issues," presumably in a notice of appeal. 9 He further concludes
that two of the three issues asserted by Employee in her motion to dismiss the appeal,
which is essentially her appellate brief, involved "alleged errors of the trial court" and
should not have been addressed by us because they were not "properly present[ ed]" as
"independent issues for our review." We respectfully disagree with our colleague's
overly narrow construction of the relevant statutory language.

       In explaining the scope of the Appeals Board's jurisdiction in Tennessee Code
Annotated section 50-6-2I 7(a)(l), the legislature directed the Appeals Board "to review
interlocutory and final orders entered by workers' compensation judges upon application
of any party to a workers' compensation claim." Tenn. Code Ann. § 50-6-21 ?(a)(l)
(2015) (emphasis added). With respect to interlocutory appeals, the legislature further
explained that "[w]ithin seven (7) business days after issuance of an interlocutory order
for temporary disability or medical benefits by a workers' compensation judge, either
party may appeal the interlocutory order by filing a notice of appeal with the clerk of the
8
    The motion does not assert any grounds for dismissal of a properly perfected appeal.
9
  The issue raised by our colleague in his concurring opinion has not been raised or briefed by any party
to this appeal.

                                                      10
court of workers' compensation claims." Tenn. Code Ann. § 50-6-217(a)(2)(A)
(emphasis added). Moreover, "[u]pon the expiration of the time established by bureau
rules for the parties to file a transcript ... or a statement of the evidence, along with
briefs or position statements specifying the issues presented for review and supporting
documents, the record on appeal shall be submitted . . . to the clerk of the workers'
compensation appeals board." Id. Thus, the statutory scheme for appeals of interlocutory
orders contemplates that an appeal may be perfected by the timely filing of a notice of
appeal by any party, and the parties may present briefs or position statements "specifying
the issues presented for review." Once an appeal is properly perfected, the statute does
not restrict the Appeals Board to considering only issues identified by the appealing party
in a notice of appeal, but allows consideration of issues specified and argued by a party as
long as the issue was properly presented and decided below. See Grant v. Commer.
Appeal, No. W2015-00208-COA-R3-CV, 2015 Tenn. App. LEXIS 750, at *24 (Tenn. Ct.
App. Sept. 18, 2015). 10 In the present case, Employee filed a "Motion to Dismiss
Employer's Appeal and Position Statement," raising the issues described above. Thus,
Employee complied with Tennessee Code Annotated section 50-6-217(a)(2)(A) by
"specifying the issues presented for review" in a "brief or position statement." We
conclude that our consideration of those issues fits squarely within the statutory authority
granted by the legislature in Tennessee Code Annotated section 50-6-21 ?(a).

        Not only is the approach we have taken consistent with the statute, it is consistent
with general law as reflected in the Tennessee Rules of Appellate Procedure. These rules
make clear that, after the filing of a single notice of appeal by one party, other parties are
not required to file a separate notice of appeal in order to raise their own issues in the
appellate court. Tenn. R. App. P. 3(h) and 13(a). Although the Tennessee Rules of
Appellate Procedure are not binding on us, they are persuasive authority and we may
resort to them for guidance. Yarbrough v. Protective Services Co., Inc., No. 2015-08-
0584, 2016 TN Wrk. Comp. App. Bd. LEXIS 3, at *12 (Tenn. Workers' Comp. App. Bd.
Jan. 25, 2016).

                                               Conclusion

       Based on the foregoing, the trial court's decision denying Employer's Motion to
Expand the Scope of the Dispute Certification Notice is affirmed. The trial court's
determination regarding medical necessity and its order for the payment of the
recommended surgery are vacated, and the case is remanded for any further proceedings
that may be necessary.


    0
'  We further note that, had the legislature intended to restrict our authority to hearing only issues raised
by an appealing party in a notice of appeal, it could have done so in a manner similar to the restriction
placed on trial courts in Tennessee Code Annotated section 50-6-239(b )(2)(2015), which limits a trial
judge's ability to consider issues not identified on a dispute certification notice except under certain
circumstances.

                                                     11
        W. Conner, Judge
     rs' Compensation Appeals Board




12
                                                                                         FILED
                                                                                    August 31, 2016
                                                                                        TENNESSEE
                                                                                   WORKERS' COMPENSAT ION
                                                                                      APPEALS BOARD

                                                                                       Time: 8 :00 A.M .


            TENNESSEE BUREAU OF WORKERS' COMPENSATION
               WORKERS' COMPENSATION APPEALS BOARD


Debbie Morgan                               ) Docket No. 2016-08-0270
                                            )
V.                                          )
                                            ) State File No. 63707-2015
Macy's, et al.                              )
                                            )
                                            )
Appeal from the Court of Workers'           )
Compensation Claims                         )
Allen Phillips, Judge                       )



                      Concurring Opinion-Filed August 31, 2016


        I agree with the lead opinion's disposition of the case and its rationale for
resolving the issues raised by Employer-Appellant. I also agree with the denial of
Employee-Appellee's "Motion to Dismiss Employer's Appeal and Position Statement." I
write separately to express my opinion that errors of a trial court addressing motions or
the admissibility of evidence are not appropriate bases for dismissing an appeal, and thus,
it was unnecessary for the lead opinion to address the merits of the issues questioning the
trial court's actions that were raised by Employee-Appellee in support of her motion to
dismiss the appeal. My concern is that the practical effect of my colleagues' willingness
to address alleged errors of the trial court, which were presented only in support of a
motion filed by Employee-Appellee to dismiss the appeal, is to alter the procedure for
appellate review by the Appeals Board that is prescribed by statute and regulation. Here,
based upon Employee-Appellee's failure to file a notice of appeal or otherwise properly
present independent issues for our review, I would forgo addressing the merits of issues
raised in Employee-Appellee's motion that question the trial court's determinations.

       In the "Motion to Dismiss Employer's Appeal and Position Statement,"
Employee-Appellee raised three issues that the lead opinion states "merit discussion."
The first such issue addresses the trial court's denial of Employee-Appellee's motion for
"directed verdict," which the lead opinion notes was intended to be a motion for
judgment on the pleadings. The second issue concerns the trial court's admission of Dr.
Winans' utilization review report into evidence. The third issue concerns whether

                                            1
Employer-Appellant waived an issue included in its notice of appeal by failing to address
the issue in its brief.

        In my view, only the third issue, which does not concern alleged errors by the trial
court, was appropriate for Employee-Appellee to submit in support of her motion to
dismiss the appeal. I would decline to address the merits of the issues questioning the
trial court's failure to grant a "directed verdict" and its admission of the utilization review
report into evidence. Employee-Appellee presented those two issues as grounds upon
which the Employer-Appellant's appeal should be dismissed and not as independent
issues for our review. Because those issues are not proper bases upon which an appeal
could be dismissed, and because they were not otherwise properly brought before us, I
would omit any discussion of the merits of those two issues as unnecessary. Thus, while
I agree Employee-Appellee's motion to dismiss the appeal should be denied, I disagree
with my colleagues' addressing the merits of issues raised in the motion that allege errors
by the trial court.



                                                  ~                               ----
                                                   Workers' Compensation Appeals Board




                                              2
                          TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                            WORKERS’ COMPENSATION APPEALS BOARD

Debbie Morgan                                               )   Docket No.    2016-08-0270
                                                            )
v.                                                          )   State File No. 63707-2015
                                                            )
Macy's, et al.                                              )


                                        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 31st day of August, 2016.
 Name                       Certified   First Class   Via   Fax       Via      Email Address
                            Mail        Mail          Fax   Number    Email

 Andrew L. Wener                                                        X      awener@wenerlawfirm.com
 J. Allen Callison                                                      X      acallison@chartwelllaw.com
 Allen Phillips, 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
      p          Claims




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