State News : Tennessee

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January 2024

Tennessee Courts Clarify Notice Defense

In June of 2023, the Workers’ Compensation Appeals Board (the “Board”) decided Ernstes v. Printpack. The holding in this case resulted in a fundamental shift in the understanding of the notice statute and defense penned in T.C.A. § 50-6-201. Confusion arose surrounding the language in the statute regarding (1) failure to give notice; and (2) defective notice. Ernstes was appealed, remanded, and appealed again, before the Board clarified the issue. The Board’s decision was upheld by the Supreme Court of Tennessee, Special Workers’ Compensation Appeals Panel, on January 2, 2024.

The facts surrounding Ernstes are quite simple: an employee worked for a company for thirty-three years, where her job exposed her to loud noises; the employee retired and noticed issues with her hearing; the employee saw a physician who determined that she suffered from substantial hearing loss; the following year, the employee, while sitting with her husband’s workers’ compensation attorney for a hearing loss issue, connected the dots; the employee notified the employer and filed a petition. This notice was untimely.

The lower court battled back and forth over the correct answer to whether the notice given was acceptable, albeit late.  In the first appeal, the Board concluded that the notice was not timely, but remanded the case for determination of whether the employee had a reasonable excuse, and whether the employer had suffered any prejudice due to the lack of notice. This lower court held that the employee offered no reasonable excuse, but the employer had not shown prejudice, and the original award of benefits was reinstated. The case was again appealed.

After the second appeal, the Board caught on to the confusion. The lower court was applying subdivisions (a)(1) and (a)(3) of § 50-6-201 synonymously in this case. The Board clarified that these subdivisions are separated in the Code for a reason. Subdivision (a)(1) applies to failure to give timely notice. Conversely, subdivision (a)(3) applies to defective notice. These are wholly different scenarios. At this point, the Board stepped in to “[draw] a distinction between untimely notice and defective notice and the burden accompanying each notice deficiency.”

The Board held: Firstly, in cases involving the lack of timely written notice, the employee bears the burden of proving that (1) timely written notice was provided; (2) the employer had actual knowledge of the accident or injury; or (3) the employee has a reasonable excuse for the failure to provide timely written notice. Secondly, when an employer affirmatively asserts a defect or inaccuracy in the written notice, the burden shifts to the employer to prove prejudice. Therein lies the problem the court faced in the Ernstes case – defective notice was not asserted, no reasonable excuse was provided, and prejudice to employer was not applicable for this lack-of-timely-notice case.

The lower court could not ignore subdivision (a)(1) – requiring a reasonable excuse for failure to provide timely notice – and instead apply subdivision (a)(3), forcing the employer to show prejudice. This comingling of statutory burdens allowed the lower court to arrive at an incorrect result. This clarification from the Board recognizes an overlooked distinction that attorneys, adjusters, employers, and employees, must take into further consideration – and more acutely consider – for cases pending from this point onward.

For any questions, please contact:

Fredrick R. Baker, Member
Brendan Walsh, Associate
Wimberly Lawson Wright Daves & Jones, PLLC
1420 Neal Street, Suite 201
P.O. Box 655
Cookeville, TN 38503-0655
Phone: 931-372-9123
Fax:  931-372-9181