Basham, Alexis v. SPB Hospitality, LLC d/b/a Logan's Roadhouse ( 2023 )

FILED
May 11, 2023
12:53 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION CLAIMS
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
ALEXIS BASHAM, ) Docket No. 20203-05-0474
Employee, )
v. )
)
SPB HOSPITALITY, LLC d/b/a ) State File No. 50877-2021
LOGAN’S ROADHOUSE, )
Employer, )
And )
)
LIBERTY INS. CORP., ) Judge Dale Tipps
Carrier. )
EXPEDITED HEARING ORDER GRANTING BENEFITS
The Court held an Expedited Hearing on May 4, 2023. The issue was whether Ms.
Basham is likely to prove at trial that she is entitled to additional temporary disability
benefits. Specifically, Logan’s questioned whether she may receive those benefits when
she has recovered from her physical injuries but still requires psychiatric treatment. The
Court holds that she may and is likely to prevail at a hearing on the merits.
History of Claim
Ms. Basham worked as the manager of a Logan’s Roadhouse. In June of 2021, after
the restaurant was closed for the evening, she tried to resolve a conflict with two individuals
who claimed to have lost something on the premises. The situation escalated, and one of
the individuals pulled Ms. Basham’s necklace off, scratched her, punched her in the face,
and pushed her outside. The assailants then got in their car and backed into her before
trying to leave the parking lot. When they realized the lot had only one exit, they turned
around and struck Ms. Basham again, this time dragging her for several feet as she tried to
keep from going under the car. She fell against the curb and struck her head and back.
An ambulance transported her to the emergency room, where she received treatment
for a head wound and other abrasions. Ms. Basham, who has a history of anxiety and
depression, also saw her mental health clinic for complaints of increased fear and anxiety
after the work incident.
Ms. Basham additionally began experiencing back symptoms and, after some delay,
Logan’s gave her an orthopedic panel from which she selected Dr. James Wiesman. He
eventually referred her to a neurosurgeon, and she chose Dr. George Lien from a panel.
Dr. Lien performed lumbar surgery and released her at maximum medical improvement on
August 15, 2022. Logan’s then terminated Ms. Basham’s temporary total disability
benefits.
Logan’s authorized a psychiatric evaluation and treatment with Dr. Greg Kyser in
January 2023, and he assessed “Posttraumatic stress disorder – work-related.” He
explained further:
It is clear that she suffered a severe, life-threatening event associated
with her employment at Logan’s Roadhouse. An event of this nature would
be extremely distressing to almost anyone. Her pre-existing psychiatric
condition would predispose her and place her at higher risk of developing
PTSD associated with her work injury. Since the assault, she has developed
symptoms that are consistent with posttraumatic stress disorder and these are
well documented in her treatment records.
Ms. Basham continues to receive therapy per Dr. Kyser’s recommendations, and he
restricted her from working until further notice.
Logan’s sent Dr. Kyser a questionnaire asking: “Do you believe Ms. Basham’s
current PTSD diagnosis arose primarily out of (more than 50%) the physical assault and
injuries she suffered in the course and scope of her employment on June 8, 2021?” Dr.
Kyser responded, “Yes.”1
At the hearing, Ms. Basham testified that, although she had previous psychological
problems, she was able to work and perform the normal functions of daily life. Since the
assault, she suffers crippling anxiety and fear that prevent her from working or living a
productive life. Ms. Basham contended that, based on Dr. Kyser’s work restrictions, she
is entitled to continuing temporary total disability benefits. She also requested that the
Court impose a penalty for unpaid benefits and award attorney’s fees.
Logan’s contended that Ms. Basham is not entitled to any additional benefits. It
argued that, because she reached maximum medical improvement for her physical injuries
1
Ms. Basham offered a Rule 72 declaration from Dr. Kyser, but the Court found it inadmissible because
she did not file it with her Request for Hearing, filed it only a week before the hearing, and failed to serve
Logan’s with a copy of the statement. The Court further found that it did not qualify as rebuttal proof.
in August 2022, it properly terminated her temporary disability payments under Tennessee
Code Annotated section 50-6-207(1)(E).
Findings of Fact and Conclusions of Law
To grant Ms. Basham’s request, she must show she is likely to prevail at a hearing
on the merits. Tenn. Code Ann. § 50-6-239(d)(1) (2022); McCord v. Advantage Human
Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Generally, to recover temporary total disability benefits, Ms. Basham must prove
(1) she became disabled from working due to a compensable injury; (2) a causal connection
between her injury and her inability to work; and (3) her period of disability. Jones v.
Crencor Leasing and Sales, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7, 8 (Dec. 11,
2015). Based on Dr. Kyser’s report, as well as the parties’ stipulations, she is likely to
prove all these elements at a final hearing. However, because Ms. Basham’s disability is
psychiatric in nature, additional analysis is required.
Mental injuries are compensable if they arise “primarily out of a compensable
physical injury or an identifiable work-related event resulting in a sudden or unusual
stimulus.” Tenn. Code Ann. § 50-6-102(15). But the temporary disability benefits
available to employees may vary because of Tennessee Code Annotated section 50-6-
207(1)(E), which says an employee is “conclusively presumed to be at maximum medical
improvement when the treating physician ends all active medical treatment and the only
care provided is for the treatment of pain or for a mental injury that arose primarily out of
a compensable physical injury.” In other words, mental injuries are treated differently than
those arising from a sudden or unusual stimulus. Therefore, the first question in this case
is, what about mental injuries involving both physical injuries and sudden or unusual
stimulus?
Although previous courts have addressed the distinction between physical injury
and “stand alone” mental injury cases in causation disputes, neither the parties nor the
Court have identified any controlling authority addressing this question.2 Ms. Basham
argued that section 207(1)(E) was only intended to address the situation where an employee
suffers a physical injury and later becomes depressed because of the pain or her inability
to work. She said her case was different because her mental injury was caused by the
assault itself, not her physical injuries. She contended that, even if she had no physical
injuries, she would still be suffering from PTSD that restricts her from working.
Conversely, Logan’s argued Ms. Basham’s approach uses an unnecessarily narrow
application of the word “injury” as interpreted by the courts. It contended that case law
2
The parties cited two Court of Workers’ Compensation Claims cases that reached opposite results and are
not binding authority.
focuses solely on whether the injury has any physical component. Further, Logan’s
suggested that Ms. Basham’s reading of the statute would result in an unnecessarily
intricate analysis, predicting that courts and physicians would have difficulty determining
the cause of mental and physical injuries arising from complex events that happened in a
matter of moments.
The Court agrees with Ms. Basham’s interpretation of section 207(1)(E). The
central focus when interpreting any statute is to “ascertain and give effect to the intention
or purpose of the legislature as expressed in the statute.” Unless the language is ambiguous,
a court must derive legislative intent “from the natural and ordinary meaning of the
statutory language within the context of the entire statute without any forced or subtle
construction that would extend or limit the statute’s meaning.” In re Adoption of A.M.H.,
215 S.W.3d 793, 808 (Tenn. 2007).
Although both parties presented arguments suggesting the legislative intent behind
section 207(1)(E), that inquiry is unnecessary because this provision is unambiguous. It
does not mention mental injuries that occur contemporaneously with physical injuries.
Instead, it only applies to a “mental injury that arose primarily out of a compensable
physical injury.” (Emphasis added). The natural and ordinary meaning of this phrase is
that a mental injury occurring concurrently with a physical injury does not fall under the
provisions of this section, so long as it arises primarily out of the incident itself and not the
physical injury.
The cases Logan’s cited primarily involve questions of causation, i.e., whether an
injury is a “stand alone” mental injury claim or whether it arose from an incident involving
a physical injury. That inquiry is used to determine compensability under another part of
the statute, section 50-6-102(15), and is not linked, in either case law or the statute, to the
question of maximum medical improvement or the application of section 207(1)(E).
Further, Logan’s concerns about the difficulties in determining the cause of mental injuries
are misplaced. Courts and medical professionals address complicated causation questions
on a regular basis, and this question would not be so complex or difficult as to be
impracticable.
Having found that section 207(1)(E) only applies to mental injuries arising out of
physical injuries, the question then becomes whether Ms. Basham’s PTSD arose primarily
out of the assault itself or out of her physical injuries. Dr. Kyser and Ms. Basham herself
provided the evidence on this issue.
Logan’s contended that Dr. Kyser’s questionnaire response places this case squarely
under the provisions of section 207(1)(E). The Court disagrees. What Dr. Kyser actually
said was that Ms. Basham’s PTSD arose “primarily out of . . . the physical assault and
injuries she suffered in the course and scope of her employment.” (Emphasis added). He
did not specify the relative contribution of either the assault or the injuries but stated in his
report that Ms. Basham’s PTSD was “work-related” and arose out of a “severe, life-
threatening event associated with her employment.”
As noted above, Ms. Basham need not prove every element of her claim by a
preponderance of the evidence at this time but instead must show she is likely to prevail at
trial. Further, “live testimony by a lay witness may influence the trier of fact in the
consideration of expert medical proof.” Caskey v. Powers Pizza, LLC, 2015 TN Wrk.
Comp. App. Bd. LEXIS 37, at *9 (Oct. 7, 2015). Ms. Basham testified that her anxiety
and depression were under control before the assault but more severe psychiatric symptoms
manifested soon after, and she sought help for those problems well before she received
treatment for any significant physical injuries.
The Court finds that Dr. Kyser’s opinions, taken in conjunction with Ms. Basham’s
credible and persuasive testimony, are sufficient to find she would likely prove that her
mental injury arose primarily out of the assault itself and not the physical injuries.
Therefore, section 207(1)(E) does not apply, and she is entitled to temporary total disability
benefits at the stipulated compensation rate of $699.30 for the stipulated period of August
15, 2022, through the present.
Ms. Basham requested attorney’s fees, presumably under Tennessee Code
Annotated section 50-6-226(d)(1)(B). That section allows an award of fees and reasonable
costs when an employer “[w]rongfully denies a claim or wrongfully fails to timely initiate
any of the benefits to which the employee . . . is entitled under this chapter, including
medical benefits . . . if the workers’ compensation judge makes a finding that such benefits
were owed at an expedited hearing[.]”
The Appeals Board has repeatedly held that interlocutory awards under section
226(d)(1)(B) “should be made only in extremely limited circumstances.” Andrews v. Yates
Servs., LLC, 2017 TN Wrk. Comp. App. Bd. LEXIS 35, at *7-8 (May 23, 2017). The Court
does not find those circumstances here and denies Ms. Basham’s request for fees at this
time. The same concerns apply to her request for a penalty award, so the Court also denies
her penalty request at this interlocutory juncture.3
IT IS, THEREFORE, ORDERED as follows:
1. SPB Hospitality, LLC shall pay Ms. Basham temporary total disability benefits at
the weekly rate of $699.30 for the period of August 15, 2022, through the date of
this Order. Ms. Basham’s attorney is entitled to fees of twenty percent from this
award.
3
Tennessee’s workers’ compensation statute authorizes a twenty-five percent penalty when an employer
“fails to pay, or untimely pays, temporary disability benefits within twenty (20) days after the employer has
knowledge of any disability that would qualify for benefits under this chapter.” Tenn. Code Ann. § 50-6-
205(b)(3)(A).
2. SPB Hospitality shall continue to pay Ms. Basham temporary total disability
benefits as long as her temporary disability exists.
3. A status hearing will take place on August 1, 2023, at 9:00 a.m. Central Time.
The parties must call 615-532-9552 or toll-free at 866-943-0025 to participate.
Failure to call might result in a determination of issues without your participation.
4. Unless an interlocutory appeal of the Expedited Hearing Order is filed, compliance
with this Order must occur no later than seven business days from the date of entry
of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3). The
Employer must submit confirmation of compliance with this Order to the Bureau by
email to WCCompliance.Program@tn.gov no later than the seventh business day
after entry of this Order. Failure to submit confirmation within seven business days
may result in a penalty assessment for non-compliance. For questions regarding
compliance, contact the Workers’ Compensation Compliance Unit via email at
WCCompliance.Program@tn.gov.
ENTERED May 11, 2023.
_____________________________________
Judge Dale Tipps
Court of Workers’ Compensation Claims
APPENDIX
Exhibits: 4
1. Dr. Kyser’s response to the February 7, 2023 questionnaire
2. Alexis Basham’s Rule 72 statement
3. Dr. Kyser’s January 6, 2023 report
4. Parties Stipulations
5. Dr. Kyser Declaration (identification only)
Technical record:
4
Ms. Basham offered “the complete medical records” as an exhibit but did not identify those records or
provide copies. Logan’s objected because the records were not submitted in advance. The Court noted that
it was unable to rule on admissibility unless the exhibit was available for review but offered the parties an
opportunity to confer and submit the records after the hearing if they reached an agreement. They were
unable to do so. Thus, the records are excluded and, because they were not provided to the Court, are not
marked for identification.
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Employer’s Position Statement
5. Pre-Hearing Brief by Employee
6. Employer’s Witness and Exhibit List
CERTIFICATE OF SERVICE
I certify that a copy of the Expedited Hearing Order was sent as indicated on May
11, 2023.
Name Certified Email Service sent to:
Mail
Michael Fisher, X michael@rockylawfirm.com
Employee’s Attorney
Taylor R. Pruitt, X trp@feeneymurray.com
Employer’s Attorney
MOST X April.verdoni@tn.gov
______________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________
Employer
Notice is given that ____________________________________________________________________
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ Other Order filed on_____________________
issued by Judge _________________________________________________________________________.
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
Parties
Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee
Address: ________________________________________________________ Phone: ___________________
Email: __________________________________________________________
Attorney’s Name: ______________________________________________ BPR#: _______________________
Attorney’s Email: ______________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________
Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee
Appellee’s Address: ______________________________________________ Phone: ____________________
Email: _________________________________________________________
Attorney’s Name: _____________________________________________ BPR#: ________________________
Attorney’s Email: _____________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, _____________________________________________________________, certify that I have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the __________ day of ___________________________________, 20 ____.
______________________________________________
[Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082