IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

Submitted on Briefs November 16, 2009

ALISIA ARIAS v. DURO STANDARD PRODUCTS COMPANY ET AL.

Direct Appeal from the Chancery Court for Madison County

No. 65071 James F. Butler, Chancellor

No. W2008-02772-SC-R3-WC - Filed January 22, 2010

The employee sought workers’ compensation benefits, contending that she had developed

occupational asthma as a result of exposure to dust in the workplace. The employee offered

into evidence the written report of a physician who performed an independent medical

evaluation of the employee at the request of the employee’s attorney. The employer objected

to the introduction of the report, contending that Tennessee Code Annotated section 50-6-235

is the exclusive method of introducing medical proof in workers’ compensation cases and

that this statute permits the employer to depose the expert whose report is offered into

evidence. Overruling the objection, the trial court admitted the report into evidence pursuant

to Tennessee Rule of Evidence 803(6) and awarded workers’ compensation benefits to the

employee based on the physician’s report. The employer appealed. We conclude that the

trial court erred by admitting the evaluating physician’s report into evidence and that the

remaining admissible evidence is insufficient to establish either causation or permanency.

Accordingly, the judgment of the trial court awarding workers’ compensation benefits is

vacated, and the complaint is dismissed.

Tenn. Code Ann. § 50-6-225(e) (2008) Appeal as of Right;

Judgment of the Chancery Court Reversed;

Case Remanded for Dismissal of the Complaint

JANICE M. HOLDER, C.J., delivered the opinion of the Court, in which CORNELIA A. CLARK,

GARY R. WADE, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.

William F. Kendall and Hailey H. David, Jackson, Tennessee, for the appellants, Duro

Standard Products Company and Federal Insurance Company.

David M. Hardee, Jackson, Tennessee, for the appellee, Alisia Arias.
OPINION

Factual and Procedural History

Plaintiff Alisia Arias began working for defendant Duro Standard Products (Duro

Standard), a paper bag manufacturer, in April 2006. On June 7, 2006, a fan near Ms. Arias’s

work station malfunctioned and blew dust onto her body and face. Ms. Arias filed an action

against Duro Standard and its workers’ compensation insurer on November 26, 2007,seeking

workers’ compensation benefits for a pulmonary injury sustained as a result of the June 7

incident.

At a trial held on October 23, 2008, Ms. Arias testified that her throat became clogged

on June 8, 2006, and that she sought medical treatment three times during the following

week. She returned to work for two weeks during which time she participated in the cleaning

of Duro Standard’s facility by using compressed air to blow paper dust from manufacturing

equipment. Ms. Arias wore a mask and used an inhaler while cleaning the equipment. Over

the Fourth of July holiday, Ms. Arias “blacked out” during a memorial service and did not

return to work. Ms. Arias consulted Dr. Gift Eze, a primary care physician, who referred her

to a pulmonary specialist, Dr. Jeffrey McCartney.

Testifying by deposition, Dr. McCartney explained that he first examined Ms. Arias

in August 2006 and continued as her treating physician until the time of trial. Dr. McCartney

diagnosed Ms. Arias with mild asthma and prescribed Singulair, Albuterol, and Asmanex.

He opined that her condition was pre-existing and was not caused by her exposure to dust at

work. However, Dr. McCartney also testified that her exposure to dust at work on June 7,

2006, could have aggravated her pre-existing condition and triggered an asthma attack. Dr.

McCartney recommended that Ms. Arias avoid “dust, fumes, chemical smoke, [and] toxins,”

but he stated that her condition should not limit her ability to work. Dr. McCartney did not

offer an opinion concerning Ms. Arias’s permanent impairment.

Dr. Grafton Thurman, a rheumatologist and pulmonary specialist, performed an

independent medical evaluation of Ms. Arias on July 11, 2007, at the request of Ms. Arias’s

attorney. In his subsequent written report, Dr. Thurman opined that Ms. Arias’s asthma was

caused by her June 7, 2006 exposure to dust in the workplace, explaining, “Everything has

been activated from an inactive, non-disease status to an active disease status from that

exposure on that day.” Dr. Thurman assigned eighteen percent permanent partial impairment

to the body as a whole as a result of her workplace injury. The report was not in the form

authorized by Tennessee Code Annotated section 50-6-235 (2008), commonly called a “C-32

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report.” After issuing his report, Dr. Thurman became disabled, and his medical practice

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was permanently closed. Dr. Thurman was unable to give a deposition or testify at trial.

At trial, Ms. Arias sought to introduce Dr. Thurman’s report into evidence pursuant

to Tennessee Rule of Evidence 803(6), the hearsay exception for records of regularly

conducted activity, often referred to as the business records exception. To establish that the

report satisfied the requirements of this hearsay exception, Ms. Arias offered the deposition

testimony of Jennifer Aycock, who had worked as Dr. Thurman’s medical assistant. Ms.

Aycock testified that Dr. Thurman was a licensed physician who specialized in pulmonary

medicine, that he conducted independent medical examinations during the course of his

business, that records of his reports were generated at or near the time of these examinations,

and that the report of his evaluation of Ms. Arias was such a record. Duro Standard objected

to admission of the report, arguing that Tennessee Code Annotated section 50-6-235 provides

the exclusive means of introducing medical opinion evidence in workers’ compensation cases

and that Ms. Arias had failed to comply with the statute. Duro Standard also argued that the

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medical report does not qualify as a business record that would be admissible under Rule

803(6). The trial court overruled Duro Standard’s objection and admitted the report pursuant

to Tennessee Rule of Evidence 803(6) without explaining the basis for its ruling.

Thereafter, Duro Standard introduced Ms. Arias’s medical records from JacksonMadison County General Hospital without objection. These medical records indicated that

Ms. Arias had an active prescription for an Albuterol inhaler on July 13, 2003, and February

27, 2004, long before her exposure to dust at Duro Standard. The February 27, 2004 medical

record also listed asthma as an identified problem or risk. At trial, Ms. Arias admitted that

she had been prescribed an inhaler before June 2006. She denied, however, that she used it

regularly, and she could not recall why the medication had been prescribed or who had

written the prescription. Ms. Arias denied that she had been diagnosed with asthma prior to

June 2006.

If Dr. Thurman had presented his opinion in a C-32 Report, Duro Standard would have had ten days 1

after receiving notice of Ms. Arias’s intent to rely on the report to object to its admission. Tenn. Code Ann.

§ 50-6-235(c)(2). Furthermore, a C-32 Report may not be introduced into evidence unlessthe physician who

authored the report is available to be deposed by the objecting party. Carter v. Quality Outdoor Prods., Inc.,

No. W2009-00855-SC-R9-WC, __ S.W.3d __ (Tenn. 2010).

In a Motion for Continuance filed on October 7, 2008, more than two weeks before the October

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23, 2008 trial, Duro Standard stated that it would object to the introduction of Dr. Thurman’s report at trial

and that it did not waive any objections to the admissibility of Ms. Aycock’s deposition. Duro Standard

asked for a continuance to allow Dr. McCartney to perform further tests on Ms. Arias. The record is silent

concerning the disposition of that motion.

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Based on the foregoing proof, the trial court found that Ms. Arias’s asthma was either

caused or aggravated by her exposure to dust in the workplace in June and July 2006. The

trial court awarded Ms. Arias thirty-six percent permanent partial disability to the body as a

whole. Duro Standard appealed, contending that the trial court erred by admitting Dr.

Thurman’s report into evidence and by finding that Ms. Arias had sustained a permanent

disability as a result of a compensable injury.

After oral argument before the Panel, this Court transferred Ms. Arias’s appeal to the

full Court for consideration. We vacate the judgment of the trial court and dismiss the

complaint.

Analysis

I. Admission of Dr. Thurman’s Report

This appeal requires us to determine whether Dr. Thurman’s report was properly

admitted into evidence pursuant to Tennessee Rule of Evidence 803(6), an exception to the

hearsay rule. Duro Standard argues that Tennessee Code Annotated section 50-6-235,

addressing the introduction of medical evidence in workers’ compensation cases, provides

the exclusive method of introducing Dr. Thurman’s report. This issue of statutory

construction is a question of law, which we review de novo. In re Estate of Tanner, 295

S.W.3d 610, 613 (Tenn. 2009); Gleaves v. Checker Cab Transit Corp., 15 S.W.3d 799, 802

(Tenn. 2000); Myint v. Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn. 1998). Our primary

objective in construing statutes is to carry out legislative intent without broadening or

restricting the statute beyond its intended scope. Houghton v. Aramark Educ. Res., Inc., 90

S.W.3d 676, 678 (Tenn. 2002).

We begin our analysis with section 50-6-235(c) of the Workers’ Compensation Law,

which provides:

(1) Any party may introduce direct testimony from a physician through a

written medical report on a form established by the commissioner. The

commissioner shall establish by rule the form for the report. All parties shall

have the right to take the physician’s deposition on cross examination

concerning its contents. . . .

(2) The written medical report of a treating or examining physician shall be

admissible at any stage of a workers’ compensation claim in lieu of a

deposition upon oral examination, if notice of intent to use the sworn statement

is provided to the opposing party or counsel not less than twenty (20) days

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before the date of intended use. If no objection is filed within ten (10) days of

the receipt of the notice, the sworn statement shall be admissible as described

in this subsection (c). In the event that a party does object, then the objecting

party shall depose the physician within a reasonable period of time or the

objection shall be deemed to be waived.

Duro Standard argues that parties in a workers’ compensation action are obligated to comply

with Tennessee Code Annotated section 50-6-235(c) before attempting to introduce medical

proof and may not circumvent the requirements of that statute by relying on generally

applicable rules of evidence to introduce such proof. Duro Standard argues that the trial

court frustrated its statutory right to depose Dr. Thurman by allowing Ms. Arias to introduce

the report pursuant to Tennessee Rule of Evidence 803(6).

Our reasoning in Martin v. Lear Corp., 90 S.W.3d 626 (Tenn. 2002), is instructive in

determining the interplay between a rule of evidence or procedure and the Tennessee

Workers’ Compensation Law. In Martin, we were asked to determine the admissibility of

a report of a physician who was consulted for an independent medical evaluation. Tennessee

Rule of Civil Procedure 26.02(4) governs the discovery of opinions held by experts. Rule

26.02(4)(B) does not permit the discovery of the opinion of an expert witness who is

consulted in preparation for trial but who will not be called as a witness at trial by the party

procuring the expert’s opinion. On the other hand, Tennessee Code Annotated section

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50-6-204(f) (Supp. 2009), governing workers’ compensation cases, permits the discovery of

opinions of physicians who are paid by employers and who treat or examine employees and

requires those physicians to testify at trial. Although Rule 26.02 protects most “consulting

experts,” we concluded that the legislature determined that physicians who are hired by

employers in workers’ compensation cases may be required to testify. Thus, we concluded

that Rule 26.02 was inconsistent with the more specific rule governing workers’

compensation cases and held that the specific rule controlled.

In this case, however, Tennessee Rule of Evidence 803(6) and section 50-6-235(c) are

not inconsistent. Instead, section 50-6-235(c) and Rule 803(6) simply provide alternative

means of introducing medical evidence in workers’ compensation cases. The prerequisites

for admission under the statute differ from those provided in the evidentiary rule, but neither

 Tennessee Rule of Civil Procedure 26.02(4)(B) states,

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A party may not discover the identity of, facts known by, or opinions held by an expert who

has been consulted by another party in anticipation of litigation or preparation for trial and

who is not to be called as a witness at trial except as provided in Rule 35.02 or upon a

showing that the party seeking discovery cannot obtain facts or opinions on the same subject

by other means.

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the statute nor the rule is the exclusive method of admissibility. To conclude otherwise

would negate another portion of the workers’ compensation statute specifically providing that

“the Tennessee Rules of Evidence apply to all civil actions” seeking workers’ compensation

benefits. Tenn. Code Ann. § 50-6-225(b) (2008). Whenever possible, courtsshould construe

component parts of a statute “so that the parts are consistent and reasonable.” See State v.

Alford, 970 S.W.2d 944, 946 (Tenn. 1998).

We are mindful of the holding of the Special Workers’ Compensation Appeals Panel

in Baker v. Sally Beauty Supply, No. 02S01-9709-CH-00078, 1998 WL 742386 (Tenn.

Workers’ Comp. Panel Oct. 26, 1998), which reached the opposite conclusion. In Baker, the

Panel considered whether the trial court erred by admitting into evidence reports from an

orthopedic surgeon and physical therapists pursuant to Rule 803(6) as records of regularly

conducted activity. Id. at *1. The employer in Baker failed to provide notice of its intent to

introduce the reports as required by section 50-6-235(c), and the employee had no

opportunity to object to the admission of the documents or to take the surgeon’s deposition.

The Panel noted that there was “considerable confusion” in the preparation of the recordsthat

may have kept them from being properly admitted pursuant to Rule 803(6) but did not reach

that issue in light of its holding. Id. at *1 n.1. The Panel in Baker instead concluded that

Tennessee Code Annotated section 50-6-235(c) provides the exclusive means of introducing

medical evidence in workers’ compensation cases. The Panel reasoned that a conflict existed

between Rule 803(6), which it described as a general statute, and section 50-6-235(c), which

it described as a specific statute. The Baker Panel applied the familiar rule that “[w]here

there is a conflict between a specific statute and a general statute, the specific statute will be

given effect.” Id. at *2.

We disagree with the Panel’s holding. We conclude that the legislature plainly

intended the Rules of Evidence to complement the Workers’ Compensation Law. We see

no reason to hold that a conflict exists requiring us to choose one means of introducing

medical records over another. Tennessee Code Annotated section 50-6-235 does not

preclude the introduction of Dr. Thurman’s report so long as the report satisfies the

requirements for admission provided in Tennessee Rule of Evidence 803(6). To the extent

Baker held otherwise, it is overruled.

II. Business Record Exception

We next consider whether the trial court erred by admitting Dr. Thurman’s report

pursuant to Tennessee Rule of Evidence 803(6). The Tennessee Rules of Evidence define

hearsay as “a statement, other than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid. 801(c).

“Hearsay evidence is not admissible except as provided by [the Tennessee Rules of

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Evidence] or otherwise by law.” Tenn. R. Evid. 802. Dr. Thurman’s report clearly

constitutes hearsay evidence that is not admissible unless it satisfies an exception provided

in the Rules of Evidence or some other law.

The trial court allowed Ms. Arias to introduce the report into evidence pursuant to

Rule 803(6). The determination of whether a hearsay statement is admissible through an

exception to the hearsay rule is left to the sound discretion of the trial court. State v. Stout,

46 S.W.3d 689, 697 (Tenn. 2001); State v. Stinnett, 958 S.W.2d 329, 331 (Tenn. 1997). We

will not reverse the ruling of the trial court absent a showing that this discretion has been

abused. Stout, 46 S.W.3d at 697.

Rule 803(6) defines the prerequisites for admission as follows:

A memorandum, report, record, or data compilation, in any

form, of acts, events, conditions, opinions, or diagnoses made at

or near the time by or from information transmitted by a person

with knowledge and a business duty to record or transmit if kept

in the course of a regularly conducted business activity and if it

was the regular practice of that business activity to make the

memorandum, report, record or data compilation, all as shown

by the testimony of the custodian or other qualified witness . . . ,

unless the source of information or the method or circumstances

of preparation indicate lack of trustworthiness. The term

“business” as used in this paragraph includes business,

institution, profession, occupation, and calling of every kind,

whether or not conducted for profit.

The foregoing exception “rests on the premise that records regularly kept in the normal

course of business are inherently trustworthy and reliable.” Alexander v. Inman, 903 S.W.2d

686, 700 (Tenn. Ct. App. 1995), perm. app. denied, (Tenn. July 3, 1995). The purpose of this

hearsay exception is to permit the use of inherently trustworthy business records at trial by

eliminating the expense and inconvenience that would result from requiring the testimony

of everyone involved in the preparation and maintenance of such records. Id. The rule is

modeled after the Uniform Business Records as Evidence Act, Tennessee Code Annotated

section 24-7-111 (1980), repealed by 1991 Tenn. Pub. Acts 273. “To avoid interpretive

mistakes . . . , the proposal specifically requires that the declarant have ‘a business duty to

record or transmit’ information. Without that duty, a business record would lack the

trustworthiness necessary to carve out a hearsay exception.” Tenn. R. Evid. 803(6) advisory

comm’n cmt.

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The Tennessee Court of Appeals has explained that Rule 803(6) includes the

following five criteria that must be satisfied for a document to be admissible under the

business records exception:

1. The document must be made at or near the time of the event recorded;

2. The person providing the information in the document must have

firsthand knowledge of the recorded events or facts;

3. The person providing the information in the document must be under

a business duty to record or transmit the information;

4. The business involved must have a regular practice of making such

documents; and

5. The manner in which the information was provided or the document

was prepared must not indicate that the document lackstrustworthiness.

Alexander, 903 S.W.2d at 700.

Having considered Dr. Thurman’s report, we conclude that the trial court erred by

admitting the report pursuant to Rule 803(6). Dr. Thurman generated this report for the

purpose of litigation in the course of his “business” as an evaluating expert. He was not a

treating physician, and his opinion was sought solely for the purpose of establishing

causation and impairment in this workers’ compensation litigation. “An extraordinary report

prepared for an irregular purpose, particularly when prepared with litigation in mind, may

not be made in the regular course of business and may be inadmissible as a business record

under Rule 803(6).” Neil P. Cohen, et al., Tennessee Law of Evidence § 8.11[6] at p. 8-113

(5th ed. 2005); see State v. Goldston, 29 S.W.3d 537, 542 (Tenn. Crim. App. 1999)

(“Hospital records kept daily for medical purposes and not prepared for the purpose of

litigation are typically deemed reliable.”).

This view is consistent with the language of Rule 803(6) declaring that business

records should not be admitted if the “circumstances of [their] preparation indicate lack of

trustworthiness.” This view is also consistent with the reason for the rule excluding hearsay

evidence, “that the trier of fact will not be able to hear cross-examination of the declarant.”

Cohen, et al., Tennessee Law of Evidence § 8.01[3][a] at 8-11. Finally, this view is

consistent with the rationale supporting recognition of the various exceptions to the hearsay

rule—to admit only hearsay evidence that exhibits inherent trustworthiness and indicia of

reliability. See id. § 8.01[3][c] at 8-12. Were we to hold that Dr. Thurman’s medical report

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meets the requirements of Rule 803(6), litigants would be free to present expert opinion on

any subject by merely introducing an expert’s written report through a records custodian

without ever subjecting the expert to cross examination. We decline to so broadly interpret

the exception provided in Rule 803(6).

III. Causation and Permanency

Having concluded that Dr. Thurman’sreport was not properly admitted into evidence,

we must examine the record to determine if the remaining evidence is sufficient to support

the trial court’s award of workers’ compensation benefits. This Court reviews a trial court’s

findings of fact in a workers’ compensation case de novo with a presumption of correctness

“unless the preponderance of the evidence is otherwise.” Tenn. Code Ann. § 50-6-225(e)(2)

(2008). When a trial court has seen the witnesses and heard the testimony, especially where

issues of credibility and the weight of testimony are involved, we must extend considerable

deference to the trial court’s factual findings. Whirlpool Corp. v. Nakhoneinh, 69 S.W.3d

164, 167 (Tenn. 2002). We extend no deference to the trial court’s findings when reviewing

documentary evidence such as depositions, however. Id.

The records of Jackson-Madison County General Hospital list Albuterol as a current

medication for Ms. Arias in 2003 and 2004. Ms. Arias confirmed the accuracy of these

records at trial. Dr. McCartney testified that Albuterol is prescribed solely for treatment of

asthma. Ms. Arias’s medical records therefore are consistent with a diagnosis of asthma and

treatment for that condition prior to the events of June and July 2006. Dr. McCartney also

testified unequivocally that Ms. Arias’s asthma was not caused by dust exposure at work,

although he testified that the dust exposure at Duro Standard may have aggravated Ms.

Arias’s pre-existing asthmatic condition by triggering an asthma attack. Dr. McCartney was

unwilling to assign any permanent impairment for Ms. Arias’s condition without regard to

whether such impairment was pre-existing or work-related.

The trial court also heard testimony from Ms. Arias that her condition had

permanently worsened. Although that testimony was admissible, McIlvain v. Russell Stover

Candies, Inc., 996 S.W.2d 179, 183 (Tenn. 1999), causation and permanency must be proven

by expert medical testimony except in the most obvious cases. Thomas v. Aetna Life & Cas.

Co., 812 S.W.2d 278, 283 (Tenn. 1991). This is not such an “obvious” case in which expert

testimony is unnecessary. Without reference to Dr. Thurman’s report, the evidence

preponderates against the trial court’sfinding that Ms. Ariassustained permanent impairment

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or disability as a result of her exposure to dust while working for Duro Standard in June and

July 2006. We therefore reverse the judgment of the trial court and dismiss the complaint.

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Conclusion

The trial court erred in admitting Dr. Thurman’s report through the testimony of his

medical assistant. Although Tennessee Code Annotated section 50-6-235 is not the exclusive

means of introducing medical testimony in workers’ compensation cases, the medical

evidence sought to be introduced in this case was hearsay and did not meet the requirements

of Tennessee Rule of Evidence 803(6). The remaining admissible evidence is insufficient

to establish causation or permanency. Accordingly, the trial court’s judgment awarding Ms.

Arias workers’ compensation benefits is vacated, and the complaint is dismissed. Costs are

assessed against the appellee, Alisia Arias, for which execution may issue if necessary.

_________________________________

JANICE M. HOLDER, CHIEF JUSTICE

As in other cases when an award to an employee is based primarily on inadmissible evidence, we

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must dismiss the complaint rather than remand for a new trial. See, e.g., Brown v. United Parcel Serv., Inc.,

No. M2007-00343-WC-R3-WC, 2008 WL 902971, at *5, 10 (Tenn. Workers’ Comp. Panel Apr. 1, 2008)

(dismissing the complaint after excluding erroneously admitted evidence from consideration of whether

causation was shown by the evidence); Brown v. Nat’l Cash Register Co., No. 03S01-9501-CV-00002, 1995

WL 688885, at *6 (Tenn. Workers’ Comp. Panel Nov. 21, 1995) (reversing the award and dismissing the

complaint because necessary supporting evidence was erroneously admitted).

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