1 

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

(HEARD OCTOBER 1, 2019, AT NASHVILLE1

) 

Ricky Caldwell ) Docket No. 2019-04-0074

) 

v. ) State File No. 78477-2018

) 

Federal Mogul Motorsports Corp., et al. ) 

) 

) 

Appeal from the Court of Workers’ ) 

Compensation Claims ) 

Robert V. Durham, Judge ) 

Affirmed in Part, Reversed in Part, and Remanded

In this interlocutory appeal, the employer asserts the trial court erred in conducting a 

telephonic hearing over the employer’s objections and in conditioning a medical 

examination requested by the employer on its being live-streamed to or videoconferenced with the employee’s personal physician. In addition, the employee asserts 

that the trial court’s original May 3, 2019 order requiring the employer’s medical 

examination to be video-conferenced is not subject to review on appeal because the 

employer’s notice of appeal was not filed until more than seven business days after the 

order was issued. Upon careful review of the record, we conclude the issues presented in 

this appeal are subject to our review. We affirm in part and reverse in part the trial 

court’s order and remand the case.

Judge Timothy W. Conner delivered the opinion of the Appeals Board in which Presiding 

Judge Marshall L. Davidson, III, and Judge David F. Hensley joined.

Alex B. Morrison and Christopher G. Rowe, Brentwood, Tennessee, for the employerappellant, Federal Mogul Motorsports Corp.

Steven Fifield, Hendersonville, Tennessee, for the employee-appellee, Ricky Caldwell

1 For purposes of oral argument, this case was consolidated with Williams v. CoreCivic, No. 2019-06-

0268, which involves a similar issue and the same attorneys. 
2

Factual and Procedural Background

Ricky Caldwell (“Employee”), a resident of Putnam County, Tennessee, worked 

for Federal Mogul Motorsports Corporation (“Employer”) at a manufacturing facility in 

Smithville, Tennessee. On October 10, 2018, while he was lifting a ninety-pound mold, 

Employee reporting feeling a “pop” in his neck and pain in his right shoulder. After 

reporting the incident to Employer, he received authorized medical care and was 

eventually seen by Dr. Roderick Vaughan, an orthopedic physician. Dr. Vaughan 

diagnosed a rotator cuff tear in the right shoulder and referred Employee to Dr. Abiola 

Atanda for further evaluation of the cervical spine. Dr. Atanda diagnosed cervical spinal 

stenosis, spondylolisthesis, and facet arthropathy. He noted that Employee reported no 

similar symptoms prior to the work accident. Dr. Atanda recommended a multi-level 

cervical fusion. 

Thereafter, Employer informed Employee of its request for a medical evaluation 

with a physician of its choice pursuant to Tennessee Code Annotated section 50-6-

204(d)(1), which states:

The injured employee must submit to examination by the employer’s 

physician at all reasonable times if requested to do so by the employer, but 

the employee shall have the right to have the employee’s own physician 

present at the examination . . . .

Tenn. Code Ann. § 50-6-204(d)(1) (2018).

In response to Employer’s notice of a medical examination scheduled with Dr. 

George Lien in February 2019, Employee indicated he would not attend. Thereafter, 

once Employee had retained an attorney, Employer attempted to reschedule the medical 

examination for April 17, 2019. Employee again declined to attend. In its motion to 

compel the medical examination, Employer argued that it was reasonable to request a 

medical examination and that Employee had unreasonably refused to attend. In response, 

Employee argued that Employer was “creating” a causation dispute where none existed

and that it was unreasonable to require Employee to undergo the medical examination. 

Employee further argued that if the medical examination were ordered, Employer should 

be required to videotape and audio record the examination or, in the alternative, that it 

should be “live-streamed” so Employee’s physician could view the examination 

electronically from a remote location.

Following a hearing on Employer’s motion, the trial court issued an order on May 

3, 2019, concluding that Employee must attend the medical examination. It further stated 

that requiring the medical examination to be videotaped or otherwise recorded “would be 

beyond the statute’s scope.” However, the court determined that allowing Employee’s 

physician to “attend” the examination by video-conference would be a “reasonable 
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compromise” because video-conferencing is “simple, cheap, reliable[,] and available to 

everyone.” Significantly, the court concluded that allowing Employee’s physician to 

observe the medical examination by video-conference fell within the meaning of the 

phrase “present at the examination” as used in the statute. 

On May 29, 2019, Employer filed a “Motion to Reconsider and Amend May 3, 

2019 Order.” In its motion, Employer argued there is no statutory right to videoconference the examination. It asserted the trial court had failed to consider certain 

provisions of the Health Insurance Portability and Accountability Act (HIPAA), a federal 

law that places certain obligations on health care providers to protect an individual’s 

private health information from disclosure under certain circumstances.

2

 Employer also 

included a list of fourteen area physicians it claimed had refused to perform the medical 

examination with the video-conferencing condition imposed by the trial court. 

On June 10, 2019, the trial court’s assistant contacted the parties to inform them 

the trial court had requested a teleconference with the attorneys.3

 Due to scheduling 

conflicts with other possible dates, the teleconference was set for 2:30 p.m. that same 

afternoon. Once the teleconference began, and Employer realized the trial court wanted 

to hear arguments regarding the pending motion, Employer objected to proceeding 

without a court reporter. When the trial court attempted to use its recording system to

make a record of the hearing, the system did not work properly. When Employer again 

objected to proceeding without a court reporter, the trial court overruled its objection and 

conducted the hearing. The following day, the trial court entered an order denying

Employer’s motion to reconsider. Employer timely filed its notice of appeal as to that 

order.

Standard of Review

The standard we apply in reviewing a trial court’s decision presumes that the 

court’s factual findings are correct unless the preponderance of the evidence is otherwise. 

See Tenn. Code Ann. § 50-6-239(c)(7) (2018). When the trial judge has had the 

opportunity to observe a witness’s demeanor and to hear in-court testimony, we give 

considerable deference to factual findings made by the trial court. Madden v. Holland 

Grp. of Tenn., Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar 

deference need be afforded the trial court’s findings based upon documentary evidence.” 

Goodman v. Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at 

*6 (Tenn. Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and 

application of statutes and regulations are questions of law that are reviewed de novo with 

no presumption of correctness afforded the trial court’s conclusions. See Mansell v. 

2 See 45 C.F.R. Part 160 (2018).

3 In its brief on appeal, Employer argues its attorney was unaware of the purpose of the teleconference 

until after it had started.
4

Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are 

also mindful of our obligation to construe the workers’ compensation statutes “fairly, 

impartially, and in accordance with basic principles of statutory construction” and in a 

way that does not favor either the employee or the employer. Tenn. Code Ann. § 50-6-

116 (2018).

Analysis

The parties raise multiple issues in this appeal, which we have summarized and 

restated as follows: (1) whether Employer’s appeal of the trial court’s order compelling 

the video-conferencing of the medical examination was timely; (2) whether the trial court 

abused its discretion in proceeding with a telephonic hearing over Employer’s objections; 

and (3) whether the trial court erred in conditioning Employer’s request for a medical 

examination on a video-conferencing requirement.

Timeliness of Appeal/Standard of Review

As a threshold matter, we first address Employee’s assertion that the May 3, 2019 

order compelling the medical examination is not subject to review on appeal because 

Employer did not file a notice of appeal within seven business days after it was issued, as 

required by Tennessee Code Annotated section 50-6-217(a)(2)(A). In response, 

Employer argues that its Motion to Reconsider and Amend May 3, 2019 Order, filed May 

29, 2019, extended the deadline for filing a notice of appeal.

We previously addressed a similar issue in Garassino v. Western Express, Inc., 

No. 2014-07-0013, 2016 TN Wrk. Comp. App. Bd. LEXIS 82 (Tenn. Workers’ Comp. 

App. Bd. Nov. 7, 2016). In that case, the trial court entered a compensation order and, 

within thirty days thereafter, one party filed a motion for discretionary costs and the other 

party responded to the motion, raising additional issues of law for the court’s 

consideration. Id. at *9. Under those circumstances, we concluded that the employer’s 

request for additional findings of fact and conclusions of law was made pursuant to 

Tennessee Rule of Civil Procedure 52.02, which extended deadlines in the appellate 

process as provided in Rule 59.01. Id. at *11.4

 

However, Garassino involved a Rule 52.02 motion that was filed before the 

expiration of the original appeal deadline for compensation orders. In the present case, 

Employer’s motion to amend was not filed until after the seven-day appeal deadline for 

interlocutory orders had expired. Allowing a party to subvert the interlocutory appeal 

deadline by filing a motion to amend days or weeks after the expiration of that deadline 

4 Our opinion in Garassino was affirmed by the Tennessee Supreme Court’s Special Workers’ 

Compensation Appeals Panel. See Garassino v. Western Express, Inc., No. M2016-02431-SC-W3-WC, 

2018 Tenn. LEXIS 60 (Tenn. Workers’ Comp. Panel Feb. 8, 2018).
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would negate express provisions in Tennessee Code Annotated section 50-6-

217(a)(2)(A), which we cannot do. Accordingly, we conclude the trial court’s original 

May 3, 2019 order was not timely appealed.

Yet, our determination with regard to the trial court’s May 3 order does not end 

the inquiry. The trial court also issued an interlocutory order on June 11, which was 

timely appealed. That order addressed issues and arguments that had not previously been 

presented. Specifically, the trial court addressed: (1) Employer’s argument that 

conditioning an employer’s medical examination on a video-conferencing requirement 

would have a chilling effect on an employer’s ability to schedule such an examination; 

(2) Employer’s apparent inability to locate a physician willing to abide by the trial court’s 

video-conferencing requirement as a condition precedent to conducting the examination; 

(3) Employer’s assertion that it would violate certain provisions of HIPAA to proceed 

with video-conferencing the examination; and (4) Employer’s argument that placing a 

video-conferencing condition on the medical examination goes beyond the scope of 

section 50-6-204(d)(1). Given that Employer timely filed a notice of appeal with respect 

to the trial court’s June 11 order, we conclude that the trial court’s determinations as 

reflected in that order are subject to review on appeal.

This conclusion is further supported by the principle that an interlocutory order, by 

its very nature, can be amended, modified, or otherwise revised at any time prior to the 

issuance of a compensation order addressing all issues in the case. Green v. Rogers 

Group, No. 2016-04-0085, 2017 TN Wrk. Comp. App. Bd. LEXIS 34, at *4 (Tenn. 

Workers’ Comp. App. Bd. May 22, 2017); see also Tenn. R. Civ. P. 54.02 (“any order

. . . that adjudicates fewer than all the claims . . . is subject to revision at any time before 

entry of the judgment adjudicating all the claims”). In the present case, when the trial 

court issued its June 11 interlocutory order, it addressed issues previously discussed and 

included additional rationales for its decision. Those determinations are subject to review 

on appeal because the appealing party timely filed a notice of appeal as to that 

interlocutory order.

Finally, Employee asserts the trial court’s June 11 order must be reviewed using 

only an abuse of discretion standard. We disagree. Instead, we conclude the issues 

addressed in the trial court’s June 11 interlocutory order are subject to our review in the

same manner as any other interlocutory order. The trial court’s determinations involving 

issues of statutory interpretation are reviewed de novo. Decisions that were within the 

trial court’s discretion are reviewed under an abuse of discretion standard.

Telephonic Hearing

Next, Employer asserts the trial court erred in proceeding with a telephonic 

hearing on June 10, 2019 over its objections. Employer argues its inability to have a 

court reporter present or otherwise make a record of the hearing resulted in unfair 
6

prejudice. According to Employer, “it was an abuse of discretion for the trial court to 

continue the proceedings over Employer’s objections and after the malfunctioning of its 

recording device.” In response, Employee argues the decision to proceed with the 

hearing was within the trial court’s discretion, the issue was thoroughly briefed by both 

parties, and “[a]ppellant was not at some disadvantage warranting remand in this 

situation.” For the reasons set forth below, we find Employee’s position on this issue 

more persuasive.

First, the parties submitted multiple pleadings and briefs regarding the request for 

a medical examination pursuant to section 50-6-204(d)(1), including: (1) Employer’s 

motion to compel; (2) Employee’s response and motion for protective order; (3) 

Employer’s motion to reconsider and amend; and (4) Employee’s response to the motion 

to amend. Moreover, both parties have submitted briefs on appeal, setting out in detail 

their respective arguments for and against the trial court’s decision, and the parties have 

been given the opportunity to orally argue the case. Employer has not suggested that the 

transcript of its argument from the June 10 hearing would have added anything new.

Second, Tenn. Comp. R. & Regs. 0800-02-21-.18(2)(a) gives trial courts

discretion to decide whether to conduct hearings for non-dispositive motions. There was 

no witness testimony presented at the June 10 hearing, so there was no evidence to

preserve. To prevail on this issue, Employer must show that the trial court’s decision to 

hear legal arguments on the motion to reconsider, despite the lack of a court reporter,

constituted an abuse of discretion, meaning that the trial court “applied an incorrect legal 

standard” or that the decision to proceed was “against logic and reasoning that caused an 

injustice to the party complaining.” Sanker v. Nacarato Trucks, Inc., No. 2016-06-0101, 

2016 TN Wrk. Comp. App. Bd. LEXIS 27, at *12 (Tenn. Workers’ Comp. App. Bd. July 

6, 2016). We conclude Employer has been given ample opportunities to present its 

arguments and, even if the trial court’s decision to proceed with the June 10 hearing was 

“against logic and reasoning,” the error was harmless under the circumstances presented.

Video-Conferencing Requirement

Finally, with respect to the trial court’s requirement that Employer arrange for the 

medical examination to be “video-conferenced” so that Employee’s physician can be 

“present” electronically, we note at the outset that this is an issue of first impression in 

Tennessee. With no precedent to guide us, we are required to consider the plain and 

ordinary meaning of the statutory language, and we must “avoid a construction that 

unduly restricts or expands the meaning of the language used.” Hadzic v. Averitt 

Express, No. 2014-02-0064, 2015 TN Wrk. Comp. App. Bd. LEXIS 14, at *8 (Tenn. 

Workers’ Comp. App. Bd. May 18, 2015). When the words in a statute “clearly mean 

one thing, the courts cannot give them another meaning under the guise of construing 

them.” Pfizer, Inc. v. Johnson, No. M2004-00041-COA-R3-CV, 2006 Tenn. App. 

LEXIS 44, at *7 (Tenn. Ct. App. Jan. 23, 2006). We conclude there is no reasonable 
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interpretation of the phrase “present at the examination,” as used in the context of this 

statute, that includes an individual’s electronic observation from a remote location.

The language in question, indicating that an employee “must submit” to an 

examination if requested by an employer “at all reasonable times,” and that the employee 

“shall have the right to have the employee’s own physician present at the examination,” 

has been part of the Tennessee Workers’ Compensation Law since the passage of the 

original “Workmen’s Compensation Act” in 1919.5

 In considering the plain and ordinary 

meaning of the word “present,” we note that Black’s Law Dictionary defines the word to 

mean “[i]n attendance, not elsewhere.” Black’s Law Dictionary (10th ed. 2014). 

Obviously, the Tennessee General Assembly in 1919 had no concept of live-streaming, 

video-conferencing, or any other method by which someone could participate in a 

meeting electronically from a remote location because such technology did not exist. The 

language in question has undergone almost no change since 1919 despite numerous 

amendments to the workers’ compensation law,

6 and we have discovered no legislative 

history indicating any intent to adjust the meaning of the language in the last one hundred 

years. If such an adjustment in meaning is intended, it is up to the General Assembly, not 

the courts, to express it.

Moreover, we respectfully disagree with the trial court’s conclusion that such 

video-conferencing technology is “simple, cheap, reliable[,] and available to everyone.” 

While it is invariably true that many people own smart phones, tablets, and computers 

with video-conferencing capabilities, the uses of such technology are often limited by an 

individual’s cellular service, the availability of Wi-Fi or hard-wired connections, the 

security of such connections, and the knowledge of the user. 

In addition, the trial court did not make clear in its order: (1) who would be

responsible for providing a device or equipment capable of initiating a video-conference; 

(2) who would be responsible for monitoring the device during the examination and 

addressing any technological issues that may arise during the examination; (3) who 

would be responsible for ensuring that Employee’s physician, and only Employee’s 

physician, was viewing the examination electronically; and (4) whether the videoconference must include events outside the evaluating physician’s presence, such as a 

nurse’s preliminary examination and diagnostic testing. Further, the order did not specify 

whether Employee’s physician, while attempting to view the examination by videoconference, could insist on or request that the video-conferencing device be adjusted or 

the perspective be changed during the examination. In short, the trial court’s order 

5 See 1919 Tennessee Public Acts, Ch. 123, § 25.

6 The original language, “the employee shall have the right to have his own physician present at such 

examination,” has been revised to state, “the employee shall have the right to have the employee’s own 

physician present at the examination.” See Tenn. Code Ann. § 50-6-204(d)(1) (2018). 
8

included no provisions to ensure the accuracy, reliability, and fairness to both sides of 

such an arrangement.

We note with interest that Rule 30.02 of the Tennessee Rules of Civil Procedure, 

which governs the general requirements of depositions, includes “non-stenographic 

recording” of such examinations. Subparagraph (4)(A) emphasizes the need to ensure 

that a non-stenographic recording of a deposition is “accurate and trustworthy.” Tenn. R. 

Civ. P. 30.02. The rule specifies who bears the expense of arranging for such nonstenographic recordings, and it includes a provision regarding the need to certify a 

deposition “recorded by other than stenographic means.” Id. In addition, Rule 35 of the 

Tennessee Rules of Civil Procedure, which governs physical and mental examinations of 

persons, discusses the need for a “detailed written report” of the examination, but it does 

not provide for the video-conferencing of the examination. 

In short, there are no statutes, rules, or regulations providing for the videoconferencing of a medical examination pursuant to Tennessee Code Annotated section 

50-6-204(d)(1). There are no rules or regulations explaining the manner in which such 

video-conferencing would be arranged, conducted, or secured. There are no rules or 

regulations governing who bears the expense of arranging and conducting such a videoconference. Consequently, with no statutes, rules, or regulations in place governing this 

practice, we decline to create a “right” to insist on the video-conferencing or livestreaming of a medical examination. The creation of such a right, if deemed appropriate,

is a function historically reserved for the legislature.

Conclusion

For the foregoing reasons, we affirm the trial court’s order to the extent it requires 

Employee to submit to a medical examination in accordance with Tennessee Code 

Annotated section 50-6-204(d)(1). We reverse the trial court’s order to the extent it 

requires the medical examination to be live-streamed or video-conferenced, and we 

remand the case. Costs on appeal are taxed to Employee.