1

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION 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. )

)

)

Appeal from the Court of Workers’ ) Heard February 7, 2024

Compensation Claims ) at Knoxville

Pamela B. Johnson, Judge )

Affirmed in Part, Vacated in Part, and Remanded

The employee sustained injuries to his right foot and leg while working for the employer 

in October 2020. Thereafter, in April 2022, the parties presented a proposed settlement 

to the trial court resolving the employee’s claim for an original award of permanent 

partial disability benefits. When the employee’s initial benefit period ended, the 

employee filed a petition for increased benefits, extraordinary relief, or permanent total 

disability. The employer denied the employee’s claim for additional benefits, asserting in 

part that the employee’s permanent work restrictions were unrelated to the work accident. 

Following a period of discovery, the employer filed a motion for partial summary 

judgment, arguing that the employee’s court-approved settlement for permanent partial 

disability benefits precluded, as a matter of law, any award of permanent total disability 

benefits. 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 subpoena duces tecum the employee had served on 

the employer’s vocational expert seeking the production of certain documents. In two 

separate orders, the trial court declined to rule on the employer’s motion for partial 

summary judgment prior to the compensation hearing, and it declined to quash the 

subpoena duces tecum. The employer has appealed both orders, which we consolidated 

for purposes of this appeal. Upon careful consideration of the record and arguments of

counsel, we affirm in part and vacate in part the trial court’s orders and remand the case.

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

Judge Pele I. Godkin and Judge Meredith B. Weaver joined.

FILED

Mar 06, 2024

11:52 AM(CT)

TENNESSEE

WORKERS' COMPENSATION

APPEALS BOARD
2

A. Allen Grant and Benjamin T. Norris, Nashville, Tennessee, for the employerappellant, Freeman Webb Company Realtors d/b/a Sunnybrook

Andrew J. Roberto, Knoxville, Tennessee, for the employee-appellant, John F. Oldham

Factual and Procedural Background

John Oldham (“Employee”) worked for Freeman Webb Company Realtors

(“Employer”) as a maintenance technician. On October 6, 2020, Employee sustained a 

work-related injury when his foot became caught in the seat arm of a golf cart he was 

working on, and he fell. The fall caused a displaced femoral fracture in his right leg. 

After a period of authorized medical treatment, the parties reached a tentative settlement 

of Employee’s “original award” based on a medical impairment rating of 8%. On April 

28, 2022, the trial court approved the settlement, which included the following language:

If, at the end of the initial compensation period, Employee has not returned 

to work with any employer or has returned to work at a lower rate of pay 

than Employee received on the date of the injury, Employee may file a

Petition for Benefit Determination to determine whether Employee 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 determines Employee is entitled to an 

increased award or extraordinary relief, Employer will be credited for 

payment of the original award under this agreement.

(Emphasis added.) After the initial compensation period expired, Employee filed a new 

petition in November 2022 seeking “increased benefits, extraordinary relief 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 

compensation hearing for October 18, 2023. In September 2023, due to a conflict in the

trial court’s schedule, an Amended Scheduling Order was entered resetting the 

compensation hearing for December 20, 2023. This order also set an October 4, 2023

deadline for the filing of dispositive motions.

Employer filed a motion for partial summary judgment on October 4 arguing that, 

as a matter of law, Employee was disqualified from seeking either extraordinary relief or 

permanent total disability. Employer asserted, in part, that “[b]ecause Employee entered 

into a binding settlement agreement for permanent partial disability benefits that was 

approved by [the] Court, he is not eligible for permanent total disability benefits.” It 

further argued that Employee cannot qualify for extraordinary relief under Tennessee 

Code Annotated section 50-6-242 because his medical impairment 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 partial summary judgment, Employer included a 
3

notice setting an in-person hearing to address its motion for November 15, 2023, as 

required by Tenn. Comp. R. and Regs. 0800-02-21-.18(1)(c). Thereafter, a separate 

notice of hearing was filed confirming that the motion hearing was set for November 15, 

which was five weeks before trial. On November 9, 2023, a new Notice of Hearing was 

filed reflecting the court’s decision to reset the hearing on Employer’s motion for 

summary judgment for December 20, the same day as the trial.

In addition, Employer filed a motion on October 24 asking the court to compel 

Employee to attend an in-person evaluation with Employer’s vocational expert. 

Employee had declined to attend the evaluation voluntarily, arguing that Employer’s 

request was too late because the deadline for taking expert proof depositions had passed.1

 

On November 9, the trial court granted Employer’s motion to compel Employee’s 

attendance at an evaluation by Employer’s vocational expert, which was set for the 

following week.

On November 14, 2023, counsel for Employee asked the trial court clerk to issue a 

subpoena duces tecum, which was personally served by Employee’s counsel on 

Employer’s vocational expert on the date of the vocational evaluation.

2

 The subpoena 

indicated Employer’s vocational expert was to appear at the offices of Employee’s 

counsel on November 28, 2023, and bring with her the following:

1. All correspondence related to this claim between your office and the 

Employer or any representative of the Employer;

2. Any notes generated in conversations regarding job surveys; and

3. The full results and data collected by your office related to 

[Employee’s] history and performance in your vocational assessment.

On November 9, Employer filed a “Motion Requesting Ruling on Employer’s 

Motion for Partial Summary Judgment Prior to Compensation Hearing or, in the 

Alternative, Continuance of Compensation Hearing.” On November 20, Employer filed a 

“Motion to Quash Subpoena” that had been served on its vocational expert.

Thereafter, the trial court entered two orders. In the first, it denied Employer’s 

motion seeking a pre-trial ruling on its motion for partial summary judgment. The trial 

court reasoned that Employer’s request was akin to a request for a bifurcated hearing, 

1 In its original Scheduling Order filed on March 3, 2023, the court set a deadline of August 31, 2023 to 

“complete proof depositions of all medical and/or expert witnesses.” That deadline was not altered in the 

Amended Scheduling Order. However, as later noted by the trial court, the scheduling order did not 

include, and the parties did not request, a deadline for the disclosure of the identity of vocational experts

who may testify in person at trial and/or any written reports produced by such experts.

2 The line on the subpoena form on which the server is to record the “Date of Service” is blank, but the 

signature of Employee’s counsel appears below that line, and the signature of Employee’s counsel was 

notarized on November 14.
4

which the court noted was disfavored in workers’ compensation cases, and any order 

addressing a motion for partial summary judgment would be interlocutory in nature, 

which would not assist the parties in preparing for trial. In its second order, the trial court 

denied Employer’s motion to quash the subpoena that had been served on its vocational 

expert, reasoning that Rule 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 pending litigation, whether it is related to the claim or 

defense.” The court then concluded, “Given the limited time available before the 

compensation hearing, the Court finds a subpoena duces tecum appropriate in this 

instance.” Employer has appealed both orders.

Standard of Review

The standard we apply in reviewing the 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) (2023). However, 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. 

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 (2023).

A trial court’s decisions regarding pretrial discovery are discretionary and are

reviewed for 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 trial 

court “applied incorrect legal standards, reached an illogical conclusion, based its

decision on a clearly erroneous assessment of the evidence, or employ[ed] reasoning that

causes an injustice to the complaining party.” Konvalinka v. Chattanooga-Hamilton

Cnty. Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008). “Whether a court applied an

incorrect legal standard is a question of law that is reviewed de novo.” Funk v. Scripps

Media, Inc., 570 S.W.3d 205, 210 (Tenn. 2019). We are required to “review a [trial]

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 applied the most appropriate legal principles applicable 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

citations omitted). This standard does not permit us to substitute our judgment for that of 

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

Analysis

On appeal, Employer raises two broad issues, which we have restated as follows: 

(1) whether the trial court erred in declining to rule on Employer’s motion for partial 

summary judgment prior to the compensation hearing; (2) whether the trial court erred in 

determining Employer’s vocational expert was subject to a subpoena duces tecum under 

Tennessee Rule of Civil Procedure 26.02(4).

Motions for Partial Summary Judgment

The Tennessee Court of Workers’ Compensation Claims conducts hearings in 

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

Evidence “unless an alternate procedural or evidentiary rule has been adopted by the 

[Bureau’s] administrator.” Tenn. Code Ann. § 50-6-239(c)(1). In circumstances where a 

Rule of Civil Procedure conflicts with the Bureau’s rules or regulations, the rule adopted 

by the Bureau will prevail. Id.; see also 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 which an employer could seek to

dismiss an employee’s claim for benefits prior to the final compensation hearing. In 

addressing motions for summary judgment filed pursuant to Rule 56 of the Tennessee 

Rules of Civil Procedure, we reviewed the Tennessee Supreme Court’s opinion in Rye v. 

Women’s Care Center of Memphis, MPLLC, 477 S.W.3d 235 (Tenn. 2015) and noted the 

Court’s discussion of the relative burdens of proof:

We reiterate that a moving party seeking summary judgment by attacking 

the nonmoving party’s evidence must do more than make a conclusory 

assertion that summary judgment is appropriate on this basis . . . . When 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 allegations or denials of [its] pleading, but must 

respond, and by affidavits or one of the other means provided in Tennessee 

Rule 56, set forth specific facts at the summary judgment stage showing 

that there is a genuine issue for trial.

Syph, 2016 TN Wrk. Comp. App. Bd. LEXIS 18, at *20-21 (quoting Rye, 477 S.W.3d at

264-65) (internal quotation marks and citations omitted).

Following the passage of the 2013 Workers’ Compensation Reform Act, several 

cases have arisen in which the Court of Workers’ Compensation Claims was asked to 

address a motion for partial summary judgment. For example, in Rye v. Calsonic Kansei 

North America, Inc., No. 2017-06-0627, 2018 TN Wrk. Comp. App. Bd. LEXIS 64 
6

(Tenn. Workers’ Comp. App. Bd. Nov. 29, 2018), the employee filed a motion for partial 

summary judgment asking the court to deem his claim for benefits based on carpal tunnel 

syndrome compensable. Id. at *5. In denying the employee’s motion, the trial court 

noted that addressing the merits of the employee’s motion would require 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 assessing credibility, which the trial court must not do 

at the summary judgment phase.” Id. at *13.

In Linsey v. Acadia Healthcare Co., No. 2017-08-1276, 2019 TN Wrk. Comp. 

App. Bd. LEXIS 17 (Tenn. Workers’ Comp. App. Bd. May 13, 2019), an employee was 

attacked by a patient at the medical facility where she worked. Id. at *2. The employee 

alleged back and shoulder injuries, 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. Id. More than one year passed before the employee filed a petition seeking 

benefits for her alleged mental injury. Id. Thereafter, the employer filed a motion for 

summary judgment as to the mental injury claim only, which we noted was a motion for 

partial summary judgment. Id. at *9. On appeal, we determined the trial court had erred 

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

Finally, in Warren v. The Pictsweet Co., No. 2017-07-0811, 2019 TN Wrk. Comp. 

App. Bd. LEXIS 60 (Tenn. Workers’ Comp. App. Bd. Oct. 17, 2019), an employee 

settled his claim for his original award of permanent partial disability benefits, then later 

filed a petition seeing increased benefits or extraordinary relief. Id. at *3. The employer

filed a motion for partial summary judgment, alleging the employee had failed to show 

that limiting his relief to the original award “would be inequitable” given that the

employee admittedly had not sought any other employment after separating from the

employer. Id. Because the trial court’s resolution of this issue would require a 

“determination of fact,” we concluded the trial court did not err in denying the 

employer’s motion for partial summary judgment. Id. at *6-7.

In conjunction with the decisions noted above, we have also been presented with 

numerous cases in which a party asked a trial court to resolve an issue of compensability

at an interlocutory stage of the case, typically through the use of a bifurcated trial. We 

have consistently concluded that it is generally improper for a trial court to use 

bifurcation to determine the compensability of a claim at an interlocutory stage of the 

case. See, e.g., Foriest v. United Parcel Service, Inc., No. 2017-06-0413, 2018 TN Wrk. 

Comp. App. Bd. LEXIS 39 (Tenn. Workers’ Comp. App. 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 

observed that bifurcated trials serve little purpose in workers’ compensation cases.”

(internal quotation marks omitted)). 
7

We also addressed the intersection between premature compensability 

determinations and motions for partial summary judgment in Love v. Love Management, 

Inc., No. 2020-06-0102, 2022 TN Wrk. Comp. App. Bd. LEXIS 9 (Tenn. Workers’

Comp. App. Bd. Feb. 23, 2022). In Love, the employee filed a motion for partial 

summary judgment seeking a determination that her alleged accident occurred in the 

course and scope of her employment with the employer. Id. at *6.

3 Following a period 

of discovery, the trial court set a hearing on the employee’s motion for partial summary 

judgment, and the insurer filed a motion to continue the hearing. Id. at *7. The trial 

court denied the insurer’s request for a continuance and, after the hearing, entered an

order granting partial summary judgment in favor of the employee as to the issue of 

compensability. Id. at *13. On appeal, we reversed, concluding the trial court had

applied an incorrect legal standard in denying the insurer’s motion for a continuance and 

in granting partial summary judgment on the issue of compensability. Id. at *19-20. A

concurring opinion emphasized that an interlocutory order purportedly resolving the issue 

of compensability “has resolved nothing because the interlocutory nature of the order 

makes it subject to revision at any time prior to the issuance of a final compensation 

order.” Id. at *28 (Conner, J., concurring). The concurrence further noted that “nothing 

prevents the party who lost at the bifurcated hearing from seeking additional discovery on 

the very issue the parties sought to resolve at the bifurcated hearing.” Id. at *28. Finally, 

the concurrence concluded that the trial court’s interlocutory order purportedly resolving

the issue of compensability is “essentially a non-binding advisory opinion.” Id. at *32.

In the context of the present case, we are asked to address whether motions for 

partial summary judgment are, per se, prohibited by the statutes and rules applicable to

the Court of Workers’ Compensation Claims. We conclude they are not. Motions for 

partial summary judgment can be appropriately addressed in circumstances where 

resolving the motion does not require the trial court to consider the credibility of 

witnesses or make compensability determinations based on its weighing of the evidence 

presented to date. What we have stated in previous cases, as highlighted in Love, is that 

determining the compensability of an employee’s claim for benefits is almost always 

inappropriate at an interlocutory stage of the case, including in the context of motions for 

partial summary judgment. As we explained in Foriest:

[F]uture developments in the case can impact the ultimate determination of 

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

his medical treatment . . . further developments over the course of the 

litigation may well alter the rights and obligations of the parties. As such, a 

final determination of the compensability of the claim has not matured to 

the point that it warrants a judicial decision.

3 The Love case was complicated by the fact that the employer took a position adverse to its workers’

compensation insurer as to the issue of compensability, which necessitated that the employer and insurer 

be represented by separate counsel.
8

Foriest, 2018 TN Wrk. Comp. App. Bd. LEXIS 39, at *8 (internal quotations marks and 

citations omitted).

Here, Employer asked the trial court to address two questions of law in its motion 

for partial summary judgment: (1) whether an employee who previously entered into a 

settlement agreement for permanent disability based on a medical impairment rating less 

than 10% can later seek an award of extraordinary relief as described in Tennessee Code 

Annotated section 50-6-242; and (2) whether an employee who previously settled his 

claim for permanent partial disability benefits can later seek an award of permanent total

disability. Neither of those questions requires the court to consider the credibility of

witnesses or make preliminary compensability determinations. Indeed, the 

compensability of Employee’s claim was acknowledged by Employer in the original 

settlement agreement. Thus, we conclude the trial court could have elected to address the 

questions of law raised by Employer in the context of a motion for partial summary

judgment.

Trial Court’s Discretion to Address Pre-Trial Motions

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

agree with Employer that a trial court can address questions of law at an interlocutory 

hearing in circumstances such as arose in this case, we must also address whether a trial 

court must entertain such issues at an interlocutory stage of the case if requested to do so 

by a party. We conclude a trial court’s decision regarding whether to resolve any 

particular issues at an interlocutory stage of the case is within its sound discretion, and we 

will disturb such determinations only upon a showing that the trial court abused its

discretion. See, e.g., Ellison v. Alley, 902 S.W.2d 415 (Tenn. Ct. App. 1995) (“[a] trial 

court will not be placed in error for failing or refusing to rule on a motion unless the 

record clearly reflects that it was asked to do so and thereafter, without just cause, refused 

to act”).

We previously addressed a similar issue in Hollis v. Komyo America, No. 2016-

03-0298, 2017 TN Wrk. Comp. App. Bd. LEXIS 25 (Tenn. Workers’ Comp. App. Bd. 

Mar. 7, 2017). In Hollis, the employer filed a motion for summary judgment in which it

asserted that the employee could not come forward with expert medical proof supporting 

her claim. Id. at *4. Although the employer set a hearing and notified the employee’s 

counsel of that hearing date, the trial court sua sponte delayed the hearing on the 

employer’s motion for summary judgment and instead used that hearing date to consider 

the employee’s motion for a “stay” or continuance. Id. at *4-5. On appeal, we concluded 

the trial court had not abused its discretion and explained, “[T]he text of Rule 56 does not 

specify a time within which a trial court must conduct a hearing on a previously filed 

motion for summary judgment . . . . It gives a trial court significant discretion to 

determine the appropriate time in the course of litigation to conduct a hearing on a party’s 

motion for summary judgment.” Id. at *7. In response to the employer’s argument that 
9

a trial court cannot, in its discretion, refuse to address the merits of a properly-filed 

dispositive motion, we stated as follows:

Contrary to Employer’s argument, the trial court has not refused to address 

the merits of Employer’s motion but has merely delayed its consideration 

of the merits of the motion to give Employee the opportunity to take a 

medical deposition. Such an action does not constitute a refusal to address 

the merits, as Employer contends, but is instead an action that controls the 

pace of litigation. Employer does not describe in any detail the nature of 

the alleged prejudice it has suffered as a result of the trial court’s order. In 

essence, Employer’s argument implies that once an employer elects to file a 

motion for summary judgment, a trial court is obligated to act on the 

motion without regard to the circumstances of the case, the course of 

discovery, the employee’s medical status, or the occurrence of expert 

depositions. A litigant does not control the pace of litigation; it is the trial 

court’s duty to monitor the course of discovery and schedule hearings as it 

deems appropriate and fair to all parties.

On the other hand, a non-moving party cannot be given an unfettered 

ability to delay a hearing on a dispositive motion until he or she believes 

the proof is sufficient to withstand the motion. Allowing a non-moving 

party to delay a hearing on a dispositive motion indefinitely would

eviscerate the summary judgment process and render such motions 

meaningless. Thus, in setting hearings on pending motions, a trial court 

must balance the interests of both parties, give each side a reasonable and 

meaningful opportunity to prepare for the motion hearing, and set the 

hearing as expeditiously as it deems appropriate under the circumstances 

of the case.

Id. at *9-10 (emphasis added) (internal quotation marks and citation omitted).

Here, we cannot conclude the trial court abused its discretion in resetting the 

hearing on Employer’s motion for partial summary judgment. Employer filed its motion 

on October 4, the last possible day as mandated by the court’s scheduling order. 

Employer set a hearing on its motion for November 15, and trial was set for December

20. Both parties were actively preparing for trial and both parties had retained vocational 

experts who were expected to testify at trial. Employer would not have been spared any 

significant time or expense by having its motion heard on the original hearing date given 

that its vocational expert completed her evaluation before the original hearing date, and 

the trial court would have needed time to evaluate the motion, decide the issues, and 

prepare an order on Employer’s motion. By the time any such order was issued, both 

parties would have completed most trial preparation activities. On the other hand, we

acknowledge that, in some circumstances, a pre-trial decision addressing such a motion
10

can result in savings of time and expense and/or changes in trial strategy. We conclude,

however, that the trial court did not apply an incorrect legal standard, reach an illogical 

conclusion, or employ reasoning that caused an injustice to the complaining party. We 

further conclude the trial court’s decision to reset the hearing on Employer’s motion for 

partial summary judgment was within the range of acceptable alternative dispositions. 

See Lee Med., Inc., 312 S.W.3d at 525.

Use of Subpoena Duces Tecum in Expert Discovery

Next, Employer asserts the trial court erred in compelling its vocational expert to 

respond to a subpoena duces tecum served on her by Employee’s counsel. Several rules 

must be considered to address this issue. First, Tenn. Comp. R. and Regs. 0800-02-21-

.17(6) authorizes the Clerk of the Court of Workers’ Compensation Claims to “issue 

signed subpoenas in blank in accordance with the Tennessee Rules of Civil Procedure.” 

That rule also requires the party who requested issuance of the subpoena to “complete 

and serve their own subpoenas.” Tenn. Comp. R. & Regs. 0800-02-21-.17(6)(a). The 

use of subpoenas is governed generally by Tennessee Rule of Civil Procedure 45, and the 

use of a subpoena duces tecum, or a subpoena for the production of documents, is 

authorized in Rule 45.02. That rules states:

A subpoena may command a person to produce and permit inspection, 

copying, testing, or sampling of designated books, papers, documents, 

electronically stored information, or tangible things . . . with or without 

commanding the person to appear in person at the place of production or 

inspection . . . . An order of the court requiring compliance with a subpoena 

issued under this rule must provide protection to a person that is neither a 

party nor a party’s officer from undue burden or expense resulting from 

compliance.

Tenn. R. Civ. P. 45.02. Moreover, Rule 45.07 provides certain protections for nonparties served with a subpoena duces tecum. As cited by Employer, a non-party witness 

served with a subpoena for the production of documents can serve a written objection to 

the subpoena “within twenty-one days after the subpoena is served.” Tenn. R. Riv. P. 

45.07(2). The subpoena in the present case was issued and purportedly served on 

November 14, 2023, and it listed November 28, 2023 as the date for production of the 

documents requested, which was less than twenty-one days later. Thus, Employer’s 

position is that the court erred in compelling its vocational expert to respond to a 

subpoena duces tecum prior to the 21-day deadline for serving objections to such a 

subpoena as allowed in Rule 45.07.

4

4 The trial court’s order addressing Employer’s motion to quash the subpoena noted the November 28 

deadline as stated on the face of the subpoena, but the court gave Employer’s expert the full 21 days, or 

until December 5, to produce the requested documents or assert “[a]ny claims of privilege or protection.”
11

To address this issue, we must also consider Tennessee Rule of Civil Procedure

26.02, which defines the scope of pre-trial discovery. In its motion to quash the 

subpoena, Employer cited Rule 26.02(3) in support of its argument that opposing counsel 

cannot seek the work product of Employer’s counsel “prepared in anticipation of 

litigation” absent a showing of “undue hardship” in obtaining “the substantial equivalent 

of the materials by other means.” During oral argument, Employer also cited Rule 

26.02(4), which appears to limit the methods by which a party can discover “facts known 

and opinions held by experts” who are expected to testify at trial to interrogatories and 

depositions, with no mention of subpoenas. However, the record on appeal does not 

include a transcript of the November 29, 2023 hearing, and it is unclear whether 

Employer presented this particular argument concerning the limitations on expert 

discovery as stated in Rule 26.02(4) to the trial court. Although the court’s order

addressing Employer’s motion to quash discusses other provisions in Rule 26.02, it does 

not specifically mention Rule 26.02(4).

5 Thus, based on our review of the record on 

appeal, it is unclear whether the trial court was given an opportunity to address the 

language in Rule 26.02(4) and whether this rule limits the methods by which a party may 

discover “facts known and opinions held by experts” to interrogatories and depositions 

only, thereby excluding subpoenas as a discovery method under these circumstances. As 

a result, we conclude it is necessary to vacate the trial court’s order denying Employer’s 

motion to quash the subpoena served on Employer’s vocational expert and remand the 

case for the trial court to address whether a party may use a subpoena to obtain “facts 

known and opinions held by experts” in light of the language of Tennessee Rule of Civil 

Procedure 26.02(4).

Conclusion

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

reasonably exercised its discretion in declining to rule on Employer’s motion for partial 

summary judgment at a particular point in the litigation. Further, we vacate the trial

court’s order to the extent it suggests a court is prohibited from considering an 

employer’s motion for partial summary judgment at a preliminary stage of the case.

Finally, we vacate the trial court’s order declining to quash the subpoena duces tecum

served on Employer’s vocational expert, and we remand the case for the court to address 

the language in Rule 26.02(4) as it pertains to the discovery of “facts known and opinions 

held by expert” by use of a subpoena. Costs on appeal are taxed to Employer.

5 The trial court’s order reflects that Employer did not object to providing certain of the materials 

described in the subpoena but objected to the demand that its vocational expert drive to Knoxville on a

date and time certain to deliver such records as described in the subpoena. 
 

 

 

 TENNESSEE BUREAU OF WORKERS’ COMPENSATION

 WORKERS’ COMPENSATION 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. ) 

) 

) 

Appeal 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 the following recipients by the following methods of service on this the 6th day 

of March, 2024. 

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@brownandroberto.com

bseay@brownandroberto.com

Pamela 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’ Compensation Appeals Board

220 French Landing Dr., Ste. 1-B 

Nashville, TN 37243 

Telephone: 615-253-1606 

Electronic Mail: WCAppeals.Clerk@tn.gov