1 TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSAT I ON APPEALS BOARD

John F . Oldham ) Docket No. 2022

- 03

- 0420 )

v. ) State File No. 66575

- 2020 ) Freeman Webb Company R ealtors )

d/b/ a Sunnybrook, et al. ) ) ) Ap pea l from the Court of Worke rs’ ) H eard February 7, 2024 Compensation Claims ) at Knoxville Pamela B. Johnson, Judge )

Affirmed in Part, Vacated in Part, and Remanded

T he employee sustained injuries to his right foot and leg while wo rking for the employer

in October 2020. Ther e aft er, in Apr il 2022, the parties presented a proposed settlement

to the trial court resolving the empl o y ee ’ s claim for an original award of permanent partial disabili ty benefits. When the employee ’ s initial benefit period ended, the employee filed a pet i tion for increased benefits, extraordinary relief

, or p ermanent t otal

d isability. The employer denied the empl o y ee ’ s claim for additional benefits, a sserting in part that the employee ’ s pe r m ane nt w ork restrictions we re unrelated to the work accident.

Fo l lowing a period of discovery

, the employer filed a motion for partial s ummary judgment , argu ing that the empl o y ee ’ s court

- approved settlement for permanent partial disability benefits preclude d , as a matter of law, any award of perman ent total disability

b enefits

. The employer further argued that the medical evidence did not support an award of extraordinary relief under the express terms of that statute

. In addition, the employer filed a motion to quash a s ubpoena duces tecum the employee had served on

t he empl o y er ’ s vocational expert seeking the produ ction of certain documents . I n two separate order s, the trial court declined to rule on the empl o y er ’ s moti on for partial summary judgment prior to the compens ation hearing, and it declined t o quash the

s u b poena duces tecum

. The empl o y e r has app ealed both orders, which we consolidated for purposes of this appeal

. Upon careful consideratio n of the record a n d a r g u m e n t s o f

c o u n s e l

, w e affirm in part a nd vacate in part the trial court ’ s orde r s and remand the c ase

.

Pre siding Judge Tim othy W. Conner deliver ed the o pi nion of the Appeals Board in w h ich

J u d g e P e l e I

. G o d k i n a n d Judge M e r e d i t h B

. W e a v e r j oin e d

. 

### FILED Mar 06, 2024 11:52 AM(CT)

TENNESSEE

WORKERS' COMPENSATION

APPEALS BOARD2 A. Allen Grant and Ben jamin T. Norris

, N ashvil le , Tennessee, for the empl oye r

appell an t

, Freeman Webb C o m pany Realtors d / b / a Sunnybrook

Andre w J. Roberto, Kno x ville

, Tenness e e, f or the emplo ye e

- a p p e l l a n t

, J o hn F . Oldham

Factual and Pr o cedural Ba ck grou nd

John Oldham ( “ Employe e ” ) worked for Freeman Webb Company Re a ltors ( “ Employer ” ) as a maintenance techn i c ian . On October 6, 2020, Employee sustained a

work

- related injury when his foot became caught in the seat arm of a gol f cart he was working on

, and he fell. The fall c aused a displaced femoral fr acture in h i s right leg

. After a period of authorized me d i cal treatment, the parties reached a tentative settlement

of Employee ’ s “ origi nal award ” based on a medical impairment r ating of 8%

. On April 28, 2022 , the trial court approved the settlement, whi ch included the following language:

If, at the end of th e initial compensation period

, Empl o y ee has not returned to work with any employer or has returned to work at a lower rate of pay than Empl oyee received on the date of the i n jury, Employee may file a

Petition for Benefit Determination to determine whether E m

ployee is entitled to increased benefits under Tennessee Code Annotated section 50

- 6

- 207(3)(B) or extraordinary relief under Tennessee Code Annotated

section 50

- 6

- 242(a)

. . . . If the judge determ ines Employee is entitled to an

increased awar d or extrao r d inary relief, Empl o y er will be credited for payment of the original award under this agreement.

(Emphasis added.) After the i nitial compensation period expired, Employee filed a new petition in N ovember 2022 see k ing “ increased benefits, extraordinary r e l ief and/or Permanent Total Disability. ” Following the issuance of a dispute certification notice, the

trial court entered a scheduling order setting various deadlines and scheduling the compensati on hearing for October 18, 2023. In September 2023, d u e t o a c o n f l i c t i n t h e

t r i a l c o u r t ’ s s c h e d u l e , an A m e nded Scheduling Order was entered resetting the compensation hearing for December 20, 2023. This order also set a n O c t o b e r 4

, 2 0 2 3 deadline for the filing of dispositive motions

.

Employer f i l e d a moti on f o r partial summary judgment on October 4 argu i ng that, as a matter of law, Employee was disqualified f r o m seeking either extraordinary relief or permanent total disability. Employer a ssert ed, in part, that “ [b]ecause Employee entered

into a bi nding se ttle m ent agreem ent for permanent partial disabili t y benefits that was approved by [the] Court, he is not eligible for permanent total disability benefits. ” It further argued that Empl o y ee cannot qualify for extraordinary relief under Tennessee

Cod e Annota ted s ection 50

- 6

- 242 because his medical impairme n t rating was less than 10%, and a rating of 10% or more is a statutory prerequisite for seeking extraordinary

relief. On the face of its motion for parti al summary judgment, Employer included a3 not ice sett ing a n in

- person hearing to address its motion fo r November 15, 2023 , as required by Tenn. Comp. R. and Regs

. 0800

- 02

- 21

- .18(1)( c) . Thereafter

, a separ ate

n otice of hearing was filed confirming that the motion hearing was set for November 15

, which was f i ve w e eks before trial. O n November 9, 2023, a ne w Notice of Hearing was

filed r e f l e c t i n g t h e c o u r t ’ s d e c i s i o n t o reset the hearing on Empl o y er ’ s motion for summary judgment fo r December 20, the same day as the trial.

In addition , Empl o y er filed a motion on O c tober 24 asking th e court to compel Empl o y ee to attend an in

- person evalua t ion with Employer ’ s vocational expert. Employee had decli n ed to attend the ev aluation vol untarily, arguing that Employer ’ s request was too late because the de a dl ine for taking exp e rt proof depositio ns had passed. 1
On November 9, the trial court granted E mployer ’ s motion to compel Employee ’ s attendance at an ev aluation by Employer ’ s vocational e xpert

, which was set for the following week

.

On November 14, 2023, co u nsel for Empl oyee asked the tri a l co urt clerk to issue a subpoena duces tecum , which was personally served by Employee ’ s counsel on Employer ’ s vocational expert on the date of t h e vocational evaluation

. 2 Th e subpoena indicated Employer ’ s vocational expert was to appea r at the off ices of Employee ’ s

c o unsel on November 28, 2023

, and b rin g with her the following:

1. All correspondence related to t h i s claim between your office and the Employer or any represent ative of the Employer;

2. Any notes generated in conversations regard ing j ob surv eys; and

3. The full results and data collected by your o ffi ce related to [Employee ’ s] history and performance in your vocational assessment

.

On November 9, Employer filed a “ Motion Requesting Ruling on Employer ’ s
Mot i o n for Partial Summary Judgm ent P rior to Compensation Hearing or, in the Alternative, Co n tinu a nce of Compensatio n Hearing. ” On November 20, Empl o y er filed a

“ Mot i o n to Quash Subpoena ” that had been served on its vocational expert.

Thereafter, the tri al court entered two orders. In the first, it denied Employer ’ s motion se eking a pre

- trial rulin g on its motion for partial summary judgment. The trial court reasoned that Empl o y er ’ s request was akin to a request for a bi fur cated hearing

,

1 I n its origin al S chedul ing O rder f il ed on March 3, 2023, the court set a deadline of August 31, 2023 to

“ complete proof depos iti o ns of all medical and/or expert witnesses. ” That deadl ine was not altered i n t h e Amended Scheduling Order. However

, as later noted by the t rial court, the sche du ling order did not

include , and the parties did not request, a deadline for th e dis closure of the identi ty of vocational experts who may testify in person at trial and/o r a n y written reports produced by such experts.

2 The line on t he subpoena form on w hi ch the serv er is to record the “ Date of Service ” is blank, but t h e sign ature of Employee ’ s counsel appears below that line , and t he signature of Employee ’ s counsel was

n ot a r ized on No vember 14

.4 which the court noted was disfavored in workers ’ co m pensati on cases , and any order addressing a motion for parti a l su mmary judgment would be interlocutory in nature, which would not assist the parties in preparing for trial

. In its second order, the tri a l court denied Employer ’ s mot i on to quash the su bpoe n a that had bee n served on its vocational

expert , reasoning t h at R ule 26.02 of the Tennessee Rules of Civil Procedure “ allows parties to obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pend ing l itigati on , whether it is related to the claim or

defense. ” T he c ourt then concluded, “ Given the limited time available before the compensation hearing, the Court finds a subpoena duces tecum appropriate in this

instance. ” Employer has a p pealed both o rde r s

.

S t a n d a r d o f R e v i e w

The standard we apply in reviewing t h e tr ia l court’s decision presumes that the court’s factual findings are correct u nless the preponderance of the evide nce i s otherwi se. See T e nn. Code Ann. § 50

- 6

- 239(c)(7) (20 2 3 ). Ho wever, t he i n terpr etat io n a nd

app li cat ion of st atu te s and regulations a r e qu e s tions of law that are review ed de novo with no presumption of correctness afforded the trial court’s conclusions. See Mansell v

. Brid g e stone F irestone N. Am. Tire, LLC , 417 S .W.3d 39 3 , 39 9 ( Tenn. 201 3)

. W e are

a lso mindful of ou r obligation to con s true t he workers’ compensation sta tutes “fairly, impartially, and in accordance with basic princip l es of statutory construction” and i n a

wa y that do es not favor either the employee or the e mplo y e r . Te nn. Co de Ann. § 5 0

- 6

- 116 (20 2 3 ).

A trial court’s dec i sion s regarding pretrial discovery are discretionary and a r e reviewed f o r an abuse of discretion

. Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of

Nashville , 154 S.W.3d 22, 42 (Tenn. 2005)

. An abuse of discretion is found if the t r ial court “applied incorrec t legal standards, reached an illogical conclusion, base d its decision on a clearly erroneous assessment of the evidence, or employ[ed] reasoning that causes an injustice to the c omplain ing p arty.” Konvalinka v. Chattanooga

- Ham i lton Cnty. Hosp. Auth. , 249 S.W.3d 346, 358 (Tenn. 2008). “Whether a court applied a n incorrect legal standard is a question of law that is reviewed de novo.” Funk v. Scripps
Media, Inc. , 570 S.W.3d 205, 210 (Te nn. 2 019). We are required to “review a [ t rial] 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 ap plied t he m o st appropriate legal principles appli c able 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

cit ations omit t ed). Th i s stan d ard does not permit us to substitute our judgment for that of

the trial court. See Di scover Bank v. Morgan , 363 S.W.3d 479, 487 (Tenn . 2012).5 Analysis

On appeal, Employer raises t wo broad issues , whic h we have restated as follows : (1 ) whether the trial court erred in de clin ing to rule o n Employer ’ s mo tion for partial summary judgment pr ior to the compensation hearin g; (2) whether the trial court erred in

determ in ing Employer ’ s vocational expert was sub ject to a subpo e n a duces te cu m un d er
Tenne s see Rule of Civil Procedure 26.02(4)

.

M otions for Partial Summary Judgment

The Tennessee Court o f Workers ’ Compensation Claims conducts hearings in

accordance with the Tennessee Rules of Civil Procedure and the Tennessee Rules of

Evidence “ u nl e ss an al t ernate procedural or evidentiary rule has been adopted by t he [Bureau ’ s] administrator

. ” Tenn. Code Ann. § 50

- 6

- 239 (c)(1). In circumstances where a

Rule of Civil Procedure conflict s with the Bureau ’ s rules or regulations

, the rule adopted

b y th e Bu r eau w ill prevail. I d

. ; s ee a l s o Syph v. Choice Food Group, Inc. , No. 2015

- 06

- 0288, 2016 TN Wrk. Comp. App. Bd. LEXIS 18, at * 8 (Tenn. Workers ’ Comp. App. Bd. Apr. 21, 2016).

In Syph , we addressed the circumstances in whi ch an employer could see k to

di s miss an employee ’ s claim for benefits prior to the final com pensation hearing. In

add ressing motions for summary judg ment file d pursuant to Rule 56 of the Tennessee Rules of Civil Procedure, we review ed the Tennessee Supre me Court ’ s opinion in Rye v. W

o men ’ s Care Center of Memphis

, M P

L L C , 477 S.W.3d 235 (Tenn. 201 5) and noted the

Court ’ s disc ussion of the relative burdens of proof :

We reiterate that a moving party seeking summary judgment by attacking the nonmoving party ’ s evide nce must do more th an m a ke a co nclusory assertion that summary judgment is appropriate on this basis

. . . . W hen a motion for summary judgment is made and supported as provided in

Tennessee Rule 56

, to survive summary judgment, the nonmoving party

may not rest upon the mere all e gations or denials of [its] pleading, but must respond, and by affidavits or one of the other means provid ed in Tennessee Rule 56, set forth specific facts at the summary judgment stage showing that there is a genuine issue for tria l.

S

y

p h

, 2 0 1 6 T N W r k

. C o m p

. A p p

. B d

. L E X I S 1 8

, a t * 2 0

- 2 1 ( q u o t i n g Rye , 477 S.W.3d at

2 64

- 65 ) ( internal quotation m a r k s and citations omitted)

.

Following the passage of the 2013 Workers ’ Compensa t i on Reform Act, several

cases have ari s en in which the Court of Workers ’ Compen s at ion Claims was asked t o address a motion for p artial summary judgme n t. For example, i n Rye v. Calsonic Kansei

N

o rth Ameri ca , Inc.

, No. 2017

- 06

- 0627, 2018 TN Wrk. Comp. App. Bd. LEXIS 646 (Tenn. Workers ’ Comp. App. Bd. Nov. 29, 2018), the employee filed a m o tio n for partial

s ummary judgment asking the court to deem his cla im for benefits based on ca rpal tunnel syndrome compensable

. Id. at *5. In den ying the employee ’ s motion, the trial court

no ted that addressing the merits of the employee ’ s m oti o n would r e qui re it to “ make

factual determinations

, ” which was inappropriate at the summary judgment stage

. Id. at
*6. On appeal, we affirmed, stating

, “ Any determination of causation on this record requires comparing testimony and ass essing credibility, which th e tr ial c ourt must not do at the summary j udgment phase. ” Id. at * 1 3

.

In Linsey v. Acadia H ealthcare Co.

, No. 2017

- 08

- 1276, 2019 TN Wrk. Comp. App. Bd. L EXIS 17 (Tenn. Workers ’ Comp. App. Bd. May 13, 2 0 19) , an employee was attacked by a patient at the m edic al fa cility whe re she worked

. Id. at * 2. The employee alleged back and sh o ulder inj u r ies , and subsequently asserted a mental injury. Id. at *3. After selecting a mental health provider from a panel, that provider declined to treat the employee. I d

. M ore than one ye ar passed b efore the employee filed a pet it i o n see king

benefi ts for her alleged ment a l injury. Id. T her eafter, t h e e mpl o y er filed a motion for summary judgmen t as to the mental injury claim only, which we noted was a mot ion for

pa rtial sum mary judgment. Id. at *9. On a p peal , we determin ed the tri a l court had erred

in not granting partial summary judgment as to the mental injury claim. Id. at *21.

Finally, in Warren v. T h e Pict sweet C o. , No . 2017

- 07

- 0811, 2019 TN Wrk. C omp. App. Bd. LEX IS 60 (Tenn. Wo r kers ’ Comp. App. Bd. Oct. 17, 2019), an employee

settled his claim for his orig inal award of perm anent partial disability benefits, then later

file d a petition seeing increased benefits or extra o rdinary relief. Id. a t *3. The employer

fil ed a motion for partial summary judgment, alleging the employ ee had failed to show that limiting his relief to the original award “ would be in equitable ” given that t h e

e mpl o y ee admittedly had not sought any other emp loyment after separating from t h e

e m ploy er. Id. Becau se the t rial court ’ s resolu tion of this issue would require a

“ determi nation of fact, ” we concluded the trial court did not err in deny ing the employer ’ s motion for partial summary judgment. I d. at * 6

- 7

.

In conj uncti o n with the deci si ons noted above, we have al so been presented with

num erou s cases i n which a party a sked a trial court to res o lve an issue of compensability

at an interl ocutory stage of the case, typically through the use of a bi furcate d trial

. We

h ave consistently conclu ded that it is gene rally im p r o p er for a trial court to use bifurcation to determin e the compensability of a claim at an interlocutory stage of the

case. Se e , e.g. , Foriest v. United P arcel Service, Inc. , No. 2017

- 06

- 04 13, 2018 TN Wr k. Comp. App. Bd. LEXIS 39 (Tenn. Workers ’ Comp. A pp. Bd. Aug. 10, 2018) ( “ [T] he issue of compensability was not ripe for adjudication at an interlocutory stage of the

case

. . . . [ O ] ur Supreme Court ’ s Special Workers ’ Compensation Appeals Panel has

obse rved that bifurcated tri als serve little pu rpose i n workers ’ compensation cases

. ” ( internal quotation m a r k s omitted) ).7 We a l s o addressed t h e intersection between prema ture compensability

determinations a nd motions for partial su mmary judgment in Love v. Love M anag ement,

Inc.

, No. 2020

- 0 6

- 0102, 2022 TN W rk. Comp. App. Bd. LEXIS 9 (Tenn. Workers ’ Comp. App. Bd. Feb. 23, 2022). In Love , the employe e filed a motion for partial summary judgment se e k ing a determin ation that her alleged accident occur red in the

course an d scope of he r employ me n t with the employer

. Id. at *6

. 3 Following a period of discovery , the trial court set a hearing on the employee ’ s moti o n for partial summary judgment, and the insurer filed a motion to co nt inue the hearing. Id. at * 7. The trial

court denied the insure r ’ s request for a co ntinuan ce and

, after the hearing, entered an order granting partial s u mmary judgment in favor of the employee as to the issue of compensability

. Id. at *13. On appeal, we reversed

, c o n c l u d ing the t ri a l court had applied a n i ncorrect l e gal standard in den ying th e insurer ’ s motion for a continuance and in granting partial summary judgment on the issu e of compensabil it y

. I d

. a t * 1 9

- 2 0

. A

c o n c u r r i n g o p i n i o n empha sized tha t an interlocuto r y order purportedly resolving the issue

of compens a bi lity “ has resolv e d nothing because the interlocutory nature of the order makes it subject to revision at any time prior to the issuance of a final compensa tion

order

. ” Id. at * 2 8 (Conne r, J.

, concurring )

. T h e c o n c u r r e n c e further noted that “ n othing

pr e vents the party who lost at t h e bi furcated hearing from seeking additional discovery on the very issue the parties so ught to resolve at the bifurcated he aring. ” Id. at *28

. Finally,

t h e c o n c u r r e n c e conclud ed that the tri a l court ’ s interlocutor y order pu r portedly resolv ing

the issue of compensability is “ essentially a non

- binding advisory opinion

. ” Id. at *32.

In the context of the present c ase, we are asked to address whether motions for partial summary judgment are, per se , prohibit ed by th e statutes and rules applicabl e to
the Court of Workers ’ Compensation Claims

. We conclude they are not. Mot i o ns for partial summary judgment can be app ropriate l y addressed in circumstances where resolving the motion does no t require the trial court to co nsider the cre dibi lity of

witnesses or make c o m p e n s a b i l i t y determinations based on its w e i g h i n g of the evidence presented to date. What we have stat ed in previous ca ses , as highlight ed in Love , is that determining the compensability of an employee ’ s claim for benef its is almost al ways inappropriate at an interlocutory stage of the case, including in the context of motions for partial summary judgm ent. As we explained in Foriest :

[F] uture developments in the case can i mpact the ultima te determination of

c ompensability

. . . . [W] e conclude that, as Employee has not yet completed

his medi cal treatment

. . . further d evelopments over the course of the litigation may well alter the rights and obligations of the parties. A s such, a

final det ermination of the c ompensability of the claim h as not matured to the point that it warrants a judicial decision.

3 The Lo ve case was complicated b y the fact that the employe r took a position adv erse to its workers ’ compensation insurer as to the issue of compensability , which necessi tated that the employer and insurer be represented by separa te c ounsel.8 Foriest

, 2018 TN Wrk. Comp. App. Bd. LEXIS 39, at *8 (interna l quotations m a r k s and

cit ations omi tted)

.

Here, Employer asked the t r i a l court to ad dress two ques tions of law in its motion for partial summary judgment: (1) whether an employee who previously entered into a

settl ement agreement for p ermanent disability based on a medical impairment rating less

than 10% can later seek a n award of extra or dinary relief as described in Tennessee Code

Annotated section 50

- 6

- 242; and (2) whether an employee who previously settled his

cl aim for permanent par tial disabil ity benefits can later seek a n award of permanent total disability. Neithe r of those quest io ns req u i res th e court to consider the credibility of

witnesses or make p r e l i m i n a r y compensability d e t e r m i n a t i o n s

. I ndeed, the compensability of Employee ’ s cla im was acknowledged by Employer in the original settlement agre ement. Thus, we co nclude the tr ial court could have elected to addre ss the questions o f law raised by Empl o y er in the context of a motion for partial summary judgment.

Trial Court ’ s Disc retion to Address Pre

- Trial Motions

The conclusion we have reached above does not end the inquiry. Although we

ag ree with Employer tha t a t r ial court can address questions of law at an interlocutor y hearing in circu mstances such as arose in this case, w e must also address whether a trial

court must entertain such issues at an interlocutory stage of th e case if reques ted to d o so by a par ty. We conclude a trial court ’ s decision regarding whether to resolve any part icular issues at an interlocutory stage of the case is within its sound discretion

, and we

w ill disturb such determinations only upon a sho w ing that the t ri al court abused i ts
discretion. See, e.g.

, Ellison v. Alley , 902 S.W.2d 415 (T en n. Ct. App. 1995) ( “ [ a ] trial court will not be placed in er ror for failing or refusing to rule on a motion unless the record clearly reflects th at it was ask e d to do so an d t hereafter, without just cause, refused

to act ” ).

We previously addressed a simila r iss ue in Hollis v. Komyo America , No. 2016

- 03

- 0298, 2017 TN Wrk. Comp. App. Bd. LEXIS 2 5 (Tenn. Workers ’ Comp. App. Bd. Mar. 7, 2017). In Hollis

, the empl oyer filed a mot ion for summary j udgment in which i t
asserted that the e mployee could not come forw ard w ith expert m edical proof supporting

her claim

. I d. at *4. Altho ugh the e mployer set a hearing and notified t h e e mployee ’ s counsel of that hearing date , the tri a l cour t sua sponte delayed the hearing on the empl o y er ’ s motion for summary judgment and instead u sed that hearing date to c onsider the empl o y ee ’ s mot ion for a “ stay ” or continuance

. Id. at *4

- 5. On app eal, we concluded

the tria l court had not abused its di scr etion and explained

, “ [T] he text of Rule 56 does not specify a time within which a trial cou rt must conduct a hearing on a previously filed motion for summary judgment

. . . . It gives a trial court significant discreti on to
determine the a ppropriate time in the course of litigation to conduct a hearing on a party ’ s motion for summary ju dgment. ” Id. at *7. In response to the employer ’ s argument that9 a trial court cannot, in its discretion, refuse to address the merits of a properly

- filed dispositive moti on , we stated as follows:

Contrary to Employer ’ s argument, the trial court has not refused to addre ss th e merits of Employer ’ s motion but has merely delayed its consideration

of the merits of the m otion to give Employe e the opportunity to take a

medical d eposition. Such an action does not constitute a refusal to address the merits, a s Employe r conten ds, b ut is instead an action that control s the pace of litigation. Employe r does no t descri be in any detail the nature of the alleged prejudice it has suffer ed as a result of the trial co urt ’ s order. In

esse nce, Employer ’ s argumen t implies that once an employer elects to file a motion for summary judgment, a trial court is obli gated to act on t he motion without regard to the circumstances of the case, the cou rse of discovery, the employee ’ s med ical status, or the occurrence of expe rt depositions. A litigant does not control the pace of litigation; it is the trial

court ’ s duty t o monitor the cou rse of discovery and schedule hearings as it deems appropriate and fair to all parties.

On the other h and, a non

- mov ing party cannot be giv en an unfettered ability to delay a hearing on a dispositive motion until he or she believes the pr oof is su fficient to withstand the motion. Allowing a non

- moving party to delay a hearing on a dispositive moti on indefi nitely would eviscerate the summary judgment process and render such motions meaningless. Thus

, in setting hearings on pending motions , a trial c ourt

m ust balance the interests of both parties, give each side a reason able and meaningful opportun ity to prep are for th e motion hearing, and set the hearing as expeditiously as it deems appropriate under the circumstances of the case

.

Id. at *9

- 10 (emph asis a dded) ( i n t e r n a l q u o t a t i o n m a r k s a n d c i t a t i o n o m i t t e d )

.

Here, we cannot conclude the tri a l court abused its discretion in resetting the

heari ng on Employer ’ s moti on for partial summary ju d gment

. Employer filed its motion

on Oct ober 4, the last possible day as mandat ed by the court ’ s s cheduling o rder. Employer set a he aring on its motion for November 15, and t rial was set for December

20

. Bot h parties were active ly preparing for trial an d both parties had retained vocational

experts w h o w e r e e x p e c t e d t o t e s t i f y a t trial. Employer would no t have b een spared any si gnifi cant time or expense by ha ving its motion he ard on t h e o r i g i n a l h e a r i n g d a t e given

that its vocation a l expert completed her evaluation b efore the original h e a r i n g date, and

the tri a l court would have needed time to evaluate the mot i o n , decide the issu es, a nd

p repare an order on Employer ’ s motion . By the time any such order w as issued, both parties would hav e completed most tria l preparat i on activities

. O n t h e o t h e r h a n d

, w e

a c k n o w l e d g e t h a t

, i n s o m e c i r c u m s t a n c e s , a p r e

- t r i a l d e c i s i o n a d d r e s s i n g s u c h a m o t i o n10 c a n r e s u l t i n s a v i n g s o f t i m e a n d e x p e n s e a n d / o r c h a n g e s i n t r i a l s t r a t e g y

. W e c o n c l u d e , h o w e v e r , t h a t t he tri a l co urt did not a pply an incorrect legal standard , reach an il logical conclusion, or employ reasoning that cause d an injustice to the compl aining party

. We

further conclude the tri a l court ’ s decision to reset the hearing on Employer ’ s motion for partial summary judgm ent w as within the range of accept able alternative dispos i ti ons. S

e e Lee Med., Inc. , 312 S.W.3d a t 52 5

.

Use of Subpoena Duces Tecum in Ex pert Discovery

Next, E mployer asserts the trial court erred in compelling its vocational expert to respond to a sub poe n a duces tec u m served on her by Employee ’ s c ou nsel

. Several rules

must be considered to address this issue. Firs t, Tenn. C omp. R. and Regs. 0800

- 02

- 21

- .17(6) authorizes the Clerk of the Court of Workers ’ Compensation Claims to “ issue signed subpoenas in b l ank in accordance with the Tennessee Rules o f Civil Procedure. ”

That r u le also r e qu ires the party who requested issuance of the subpo ena to “ complete

and ser ve their own subpoenas. ” T e n n

. C o m p

. R

. & R e g s

. 0800

- 02

- 21

-

. 1 7 ( 6 ) ( a )

. The use of subpoenas is g o verned generally by Tennessee Rule of Civi l Procedure 45 , and the use of a subpoena duces tecum

, or a subpoena for the pro duction of d ocuments, is

authorized in Rule 45.02. That rules states:

A subpoena may command a person to produce and permit ins pec t i on, copying, testing, or sampling of desig nated books, papers, documents, electronically s tored information, or tangible t hings

. . . with or without commanding the person to appear in person at the place of production o r inspection

. . . . An order o f t h e court requiring compliance with a subpoen a issued under this ru le must provide protection to a per s on that is nei ther a

p arty nor a p arty ’ s officer from undue burden or expense resulting from compliance.

Tenn. R. Civ. P. 45.02

. Moreove r , Rule 45

. 07 pr o v ides certain protecti ons for non

parties s erved with a subpoena duces tec um . As ci ted by Empl oyer, a non

- party witness

se rved with a subpoena for the production of documents can serve a written ob jection to the subpo ena “ within twenty

- one days after the s ubpoena is served. ” Tenn . R. Ri v. P

. 45.0 7(2). The subpoena in the present c a se was issued and purportedly served on

Nov e mber 14, 2023, and it listed November 28, 2023 as the date for product ion of the documents requested , which was less than twenty

- on e days later . Thus, Employer ’ s position is that the c ourt erred in compelling its vocational expert to respond to a subpoen a duces te cum prior to the 21

- day dead line for serving o b jections to s uch a subpoena as allowed in Rule 45.07

. 4

4 T he trial court ’ s or der addressing Emplo yer ’ s moti o n to quash the subpoen a noted the November 28

de a dl ine as s t ated on the face of the subpoena, but th e c ourt gave Employer ’ s expert the full 21 days , or

u ntil December 5, to produce the requested document s o r assert “ [ a ] ny claim s of pr ivilege or protection

. ”11 To address this issue, w e must also consider Tennessee Rule of C i vil Procedure

26.02 , which defines the scope of p re

- trial discovery. In its m ot i on to q uash the subpoena, Empl o y er cited Rule 26 .02(3) in support of its arg u ment that oppo sing counsel

cannot seek th e work product of Employer ’ s counsel “ prepared in anticip at ion o f litigation ” absent a showing of “ undue h ards h ip ” in obtaining “ the su bstantial equivalent

of the materia ls by other mean s. ” During oral argument, Employer also cited Rule 26.02(4), which ap pears to l imit the m ethods by which a party can discover “ f act s known and opinions held by expert s ” who ar e expected to testify at tria l to inter r ogatories and depositions, with no menti on of subpoenas. However, th e record on appeal does not

include a tra nscript of the November 29, 2023 hearing, and it is uncl ear wh e t her Employer presented this particular arg ument concerning the limitati ons on exp ert
dis covery as stated in Rule 26.0 2 ( 4) to the trial court. Although t he court ’ s order addressing Employer ’ s m o tion to quash discusses other provisions in Rule 26.02, it does

not specifically menti on Rule 26.02(4)

. 5 Thus, based on our re view of the r e cord on appeal

, it is unc lear w hether the tri a l court was given an opportunity to address the language in Rule 26.02(4) and whether t h i s r u l e l imits the methods by which a party may

discover “ fa cts k nown and opinions held by experts ” to interrogat or ies and depositions

o nly , thereby exclu ding subpoenas as a discovery method unde r these circumstances

. A s a result, we conclude it is necessary t o va cate the trial court ’ s order denying Employer ’ s

mot ion t o quash the subpoen a served on Employer ’ s vocati on al expert a nd remand the

case for the t ri a l court to address whether a party may use a subpoena to obtain “ facts known and op i ni ons held by experts ” i n light of the language of Tennessee Rule of Civil

Pro c e dure 26.02(4).

C o n c l u s i o n

F o r t h e f o r e g o i n g r e a s o n s , w e affirm the tr ial court ’ s orde r to the extent the court reasonably exerci sed its discretion in declin ing to rul e on Employer ’ s motion for parti al summary judgment a t a p a r t i c u l a r point in the litigation

. F u r t h e r , w e vacate t h e t r i a l

c o u r t ’ s o r d e r to the extent it sugge st s a court is prohibited from consider ing an

e mployer ’ s motion for partial summary judgment at a preliminary stage o f the case

. Finally, w e vacate the trial court ’ s or de r de clining to quash the s ubpoena duces tec u m served on Empl o y er ’ s vocational exp ert, a n d we r e m a n d t h e cas e for the court to addres s the language in Rule 26.02(4) as it pertains to the discovery of “ fa cts known and opinions held by expert ” by use of a s u b p o ena

. C o s t s o n a p p e a l a r e t a x e d t o Employe r

.

5 The trial court ’ s order reflects that Empl o y er did not object to pro viding certain of the materials

describ ed in th e subpoena but obje cte d to the demand that it s vocational expert drive to Knox v i lle on a date and time certain to deliver such records as described in the sub poena.TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSAT I ON APPEALS BOARD

John F. Oldham ) Docket No. 2022-03-0420 )

v. ) State File No. 66575-2020 ) Freeman Webb Company Realtors ) d/b/a Sunnybrook, et al. ) ) ) Appe al from the Court of Workers’ ) Heard February 7, 2024 Compensation Claims ) at Knoxville Pamela B. Johnson, 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 th e following recipients by the following methods of service on this the 6th day

of March

, 202 4.

Name Certified

Mail First Class

Mail Via

Fax Via

Email Sent to:

A. Allen Grant

Ben Norris X agrant@eraclides.com bnorris@eraclides.com

Andrew Roberto X aroberto@brownandr oberto.com bseay@brownandroberto.com

Pame la B. Johnson

, Judge X Via Electronic Mail

Kenneth M. Switzer

, Chief Judge X Via Electronic Mail Penny Shrum, Clerk, Court of Workers’ Compensation Claims X penny.patterson

- shrum@tn.gov

Olivia Yearwood Clerk, Workers’ Compensatio n Appeals Board 220 French Landing Dr., Ste. 1-B Nashville, TN 37243 Telephone: 615 -253-1606

Electronic Mail: WCApp eals .Clerk@tn.gov