IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

September 5, 2002 Session

JACKIE MARTIN v. LEAR CORPORATION

 Appeal from the Circuit Court for Hamblen County

No. 98-CV-303 Kindall Lawson, Judge

No. E2001-01002-SC-WCM-CV - Filed October 24, 2002

In this workers’ compensation case, we are called upon to determine whether the trial court may

admit a form C-32 medical report obtained by the plaintiff from the defendant’s “consulting expert,”

a physician who made a physical examination of the plaintiff. The defendant claims that the

physician it hired to make an independent medical examination of the plaintiff is protected from

compelled testimony under Tennessee Rule of Civil Procedure 26.02(4)(B). However, the

Tennessee’s Workers’ Compensation Law, specifically Tennessee Code Annotated sections 50-6-

204(f) and 50-6-235(c), clearly permits the admission of testimony, including a medical report form,

of an examining physician paid for by the employer in a workers’ compensation case. Therefore,

we hold that, pursuant to Tennessee Code Annotated sections 50-6-204(f) and 50-6-235(c), the trial

court did not err by admitting the physician’s medical report.

Tenn. Code Ann. § 50-6-225(e); Judgment of the Trial Court is Affirmed

FRANK F. DROWOTA,III,C.J., delivered the opinion of the court, in which ADOLPHO A. BIRCH,JR.,

JANICEM.HOLDER,and WILLIAM M.BARKER, JJ. joined.E.RILEY ANDERSON, J., Not Participating.

Steven H. Trent and Jennifer P. Keller, Johnson City, Tennessee, for the appellant, Lear Corporation.

James M. Davis, Morristown, Tennessee, for the appellee, Jackie Martin.

OPINION

Factual Background

The plaintiff, Jackie Martin, worked as a seat back assembler for the defendant, Lear

Corporation, located in Hamblen County, Tennessee, from November 9, 1989, until September 4,

1998. At the time of trial, Martin was fifty-seven years old. He is married, the father of two grown

children, and a veteran of twenty-four years of military service in the United States Army. Martin

served two tours of duty in Vietnam. As a result of his military service, he suffers from Post

Traumatic Stress Disorder (“PTSD”), which was diagnosed in 1996. Martin’s employment at Lear

involved repetitive motion in which he lifted the back portion of seats at a production rate of 1,735
1

The trial court did not differentiate the effect of the various medical and psychiatric injuries

on the plaintiff’s vocational disability.

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per day. On September 23, 1998, Martin filed a complaint seeking workers’ compensation benefits,

alleging that his physical injuries resulted from his work at Lear and that his PTSD was aggravated

by those injuries.

At trial, the plaintiff testified that he began to experience pain in his right elbow and left

shoulder in late 1996. In early 1997, Martin reported his injury to his supervisor, Don Shockley, and

acquired arm supports from the nurse in the company clinic. Martin also began to see Dr. Randall

Greer, a physician on the list of workers’ compensation physicians provided by Lear. Greer treated

Martin and referred Martin to physical therapy and to another doctor, Dr. Michael Bratton.

In the spring of 1998, Martin began to experience intense pain in both arms, constant

inflammation of his elbows, swelling in his right elbow, numbness in his right hand, and a sore spot

in the back of his neck. He again visited Dr. Greer, who referred Martin to a neurologist, Dr. Scott

Bridges. Following his visit with Dr. Bridges, Martin notified the nurse and a safety officer at Lear

that he had been diagnosed with carpal tunnel syndrome, tendinitis in both elbows, bursitis with

tendinitis in both shoulders, a ruptured disc in his neck, and two narrowed discs in his neck.

On September 4, 1998, Martin underwent surgery for right carpal tunnel release, performed

by Dr. John Ambrosia. Martin later had surgery on his right shoulder on June 15, 1999, performed

by Dr. Bratton. On Lear’s request, neither doctor gave Martin an impairment rating. Martin testified

that, as a result of his employment with Lear, he now suffers from depression, sleeplessness, and

constant, disabling pain that prevents him from performing many day-to-day activities.

On April 24, 2000, Lear filed a motion requesting the court to order an independent medical

examination by a neurologist. Lear’s motion was granted, and Dr. Steven Sanders performed the

examination on August 28, 2000. On November 7, Lear notified Martin that Dr. Sanders was a

consulting expert only, and that he was not expected to testify. Then, on December 5, Martin filed

a notice that he would file Dr. Sanders’ form C-32 medical report, obtained by Martin from Dr.

Sanders, to be used as evidence under Tennessee Code Annotated section 50-6-235(c)(1). Lear

objected, claiming that Tennessee Rule of Civil Procedure 26.02(4)(B) protects from discovery the

opinion of a consulting expert who will not be called as a witness.

The trial court found in favor of Martin and admitted the C-32 report into evidence. Dr.

Sanders’ report agreed with the opinion of Martin’s expert, Dr. Gutch, as they both found Martin to

have a permanent impairment rating of 39%. Relying on the opinions of Drs. Ambrosia, Bratton,

Sanders, and Gutch, and the opinion of Dr. Russell McKnight, a psychiatrist, the trial court found

that Martin was permanently and totally disabled and awarded him workers’ compensation benefits

accordingly.1
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Before the Special Workers’ Compensation Appeals Panel, Lear asserted that the trial court

erred by admitting the consulting expert’s report, by finding that Martin gave adequate notice to the

employer, by finding that the work-related injuries aggravated Martin’s psychological condition, and

by awarding Martin permanent and total disability. The Panel affirmed the judgment of the trial

court as to all issues except the trial court’s finding that Martin’s psychological condition was

aggravated by his work-related injuries. However, the Panel found that the trial court’s award of

permanent and total disability is sufficiently supported by the plaintiff’s physical injuries.

We granted Lear’s motion for review and now affirm the trial court’s judgment.

Standard of Review

In workers' compensation cases, the standard of review is de novo upon the record,

accompanied by a presumption of the correctness of the trial court's factual findings, unless the

preponderance of the evidence is otherwise. Tenn. Code Ann. § 50-6-225(e)(2); Mannery v. WalMart Distrib. Center, 69 S.W.3d 193, 196 (Tenn. 2002).

Analysis

Examining Physician’s Report

Tennessee Code Annotated section 50-6-116 declares the Workers’ Compensation statute

to be remedial in nature, and directs that the statute “shall be given an equitable construction by the

courts, to the end that the objects and purposes of this chapter may be realized and attained.” Tenn.

Code Ann. § 50-6-116 (1999). “Accordingly, ‘these laws should be rationally but liberally construed

to promote and adhere to the Act's purposes of securing benefits to those workers who fall within

its coverage.’” See Watt v. Lumbermens Mut. Cas. Ins. Co., 62 S.W.3d 123, 128 (Tenn. 2001)

(quoting Lindsey v. Smith & Johnson, Inc., 601 S.W.2d 923, 926 (Tenn.1980)).

This case involves the interaction between the Tennessee Rules of Civil Procedure and the

Workers’ Compensation statute. The Tennessee Rules of Civil Procedure apply to all civil actions

in this state, see Tenn. R. Civ. P. 1 (2002); however, as this Court has previously held, “specific

statutory provisions typically will be given force and effect over more general statutory provisions.”

Patterson v. Tennessee Dept. of Labor and Workforce Dev., 60 S.W.3d 60, 64 (Tenn. 2001);see also

Five Star Express, Inc. v. Davis, 866 S.W.2d 944, 946 (Tenn.1993). Therefore, as to issues in

workers’ compensation cases, the Rules are subject to the more specific Workers’ Compensation

statute. 

Relying upon Tennessee Rule of Civil Procedure 26.02(4)(B), the defendant argues that the

trial court erred in allowing the plaintiff to introduce the defendant’s examining physician’s report

at trial because the defendant designated the physician a consulting expert. Rule 26.02(4)(B)

provides:
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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. 

Tenn. R. Civ. P. 26.02(4)(B) (2002).

Plaintiff, however, contends that Tennessee Code Annotated section 50-6-204(f) controls in

this case. Section 50-6-204(f) states,

Any physician whose services are furnished or paid for by the employer and who

treats or makes or is present at any examination of an injured employee may be

required to testify as to any knowledge acquired by such physician in the course of

such treatment or examination as same relates to the injury or disability arising

therefrom. 

Tenn. Code Ann. § 50-6-204(f) (1999). Furthermore, Tennessee Code Annotated section 50-6-

235(c) permits any party to use medical reports in lieu of depositions as evidence at trial.

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

medical report on a form established by the commissioner of labor and workforce

development. 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 before the date of intended

use . . .. 

Tenn. Code Ann. § 50-6-235(c)(1) & (2) (1999). 

We agree with the plaintiff. While Rule 26.06 protects most “consulting experts,” the

Legislature has made it clear that in workers’ compensation cases, physicians hired by the employer

who treat, make, or are present at physical examinations of workers’ compensation plaintiffs “may

be required to testify.” Furthermore, section 50-6-235(c)(1) allows the physician’s medical report

to be introduced at trial in lieu of testimony. In this case, the requirements of section 50-6-204(f)

have been satisfied: Lear, the employer, hired Dr. Sanders, a medical doctor, to perform an

independent medical examination of the plaintiff, Jackie Martin. Martin obtained a form C-32

medical report from Dr. Sanders, and, on December 5, 2000, Martin filed a notice with the court that
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he planned on using Dr. Sanders’ medical report at trial. Trial was February 23, 2001, thus the

plaintiff’s notice was in compliance with section 50-6-235(c)(2).

 

Therefore, Lear’s November 7, 2000 letter to Martin indicating that Dr. Sanders was to be

a consulting expert has no impact on our analysis. The clear implication of the Workers’

Compensation statute is that a physician furnished by the employer who “treats, makes, or is present”

at a physical examination of the employee can never be deemed a consulting expert for the purpose

of protecting that physician’s report.

Lear has provided authority to support its argument that examining experts deemed

consulting experts after examinations are protected from forced testimony. See, e.g. White v.

Vanderbilt Univ., 21 S.W.3d 215, 224 (Tenn. Ct. App. 1999)(suggesting that a party could shield

the findings of a doctor who had been classified as a consulting expert before being deposed),

Durflinger v. Artiles, 727 F.2d 888 (10th Cir. 1984), Reeves v. Boyd & Sons, Inc., 654 N.E.2d 864

(Ind. Ct. App. 1995). Importantly, however, none of the cases on which Lear relies are workers’

compensation cases. Therefore this authority is inapposite because Tennessee Code Annotated

section 50-6-204(f) did not apply. 

Additionally, Lear cites two unreported workers’ compensation cases at the trial level that

provide Rule 26.02 protection to consulting experts. One case, however, involved a vocational

expert, which does not fall under section 50-6-204(f). In the other case, the trial court, which

allowed the defendant to prevent its examining physician from testifying, was evidently not made

aware of section 50-6-204(f). The trial court’s order specifically notes that Tennessee’s Workers’

Compensation Law “seems not to have addressed the specific issue presented.”

Lear, acknowledging the existence of Tennessee Code Annotated section 50-6-204(f), asks

this Court to find the statute unconstitutional under a separation of powers argument, relying on State

v. Mallard, 40 S.W.3d 473 (Tenn. 2001). In Mallard, we held that a particular criminal statute that

conflicted with Rule of Evidence 404(b) was unconstitutional. Since the statute in question

conflicted with a rule of evidence, this Court was concerned about undermining the judicial

determination of logical and legal relevancy. See id. at 483. We recognized that the General

Assembly can establish rules of evidence in furtherance of the substantive law, but its ability to enact

rules for use in court must be confined to those areas appropriate to the exercise of that power. See

id. at 481. We emphasized that only the Supreme Court has the inherent power to promulgate rules

governing the practice and procedure of the courts of this state. See id. at 480-481. Thus, we

concluded that the legislature has no constitutional authority to enact rules that strike at the heart of

the court’s exercise of judicial power. See id. at 483. 

This case clearly is distinguishable from Mallard. First, the statute at issue in this case does

not impermissibly conflict with Rule 26.02 because it merely limits the application of Rule 26.02

in certain circumstances — when an employer in a workers’ compensation case hires a physician to

treat, make, or be present at a physical examination of the employee. Employers are not precluded
2Van Tran v. State, 66 S.W.3d 790, 804 (Tenn. 2001) (stating that the legislature sets public

policy).

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from relying upon Rule 26.02 as to other experts who do not meet the strict requirements of the

statute.

Second, as the defendant points out, Rule 26.02(4)(B) is grounded in public policy concerns.

Without the protection of this rule, litigants would be reluctant to consult experts for fear that their

efforts would prove counter-productive, in that any unfavorable findings could be used against them.

Further, it would be unfair for one party to reap the benefits of the other party’s efforts. However,

public policy generally is set by the Legislature,2 and, in particular, the Workers’ Compensation Law

is entirely a creature of statute. See, e.g., Crump v. B & P Const. Co., 703 S.W.2d 140, 144 (Tenn.

1986); Perry v. Transamerica Ins. Group, 703 S.W.2d 151, 154 (Tenn. Ct. App. 1985). As such, the

Legislature is the appropriate body to set the policy that governs workers’ compensation cases.

By enacting Tennessee Code Annotated section 50-6-204(f), the Legislature is advancing the

remedial purpose of workers’ compensation cases: that of securing benefits to those who fall within

its coverage. The purpose of this provision in particular seems to be that the legislature did not want

employers, with greater resources, to send injured employees to many physicians for physical

examinations until the employer receives a favorable result. There is, however, no requirement of

shared information or forced testimony with regard to the employer’s use of non-physician experts

or physicians who consult without examining the employee. Therefore, section 50-6-204(f) is not

unconstitutional as the defendant contends. The Legislature has not wholly suspended Rule

26.02(4)(B)’s application. It has merely provided an alternative procedure in a limited and specific

context — workers’ compensation cases. Accordingly, we conclude that the trial court in this case

did not err in allowing Martin to introduce into evidence Dr. Sanders’ C-32 form. 

Total and Permanent Disability

The defendant asserts that there is not enough evidence to support the trial court’s

determination of total and permanent disability. We disagree. As stated earlier, two doctors found

the plaintiff suffered a 39% permanent medical impairment. The plaintiff himself testified before

the trial court as to his injuries and continuing disability, and there was evidence that the plaintiff’s

disability was caused by the plaintiff’s work for the defendant. In addition, after reviewing the

record, we are of the opinion that the Special Workers’ Compensation Appeals Panel erred in

concluding that Dr. McKnight’s testimony was too speculative to support an award based on

psychological injuries. In our view, the record does not preponderate against the trial court’s finding

that the work-related injuries aggravated the plaintiff’s psychological problems. Therefore, we reject

the Panel’s finding on this issue and affirm the judgment of the trial court.

With respect to the notice issue raised by the defendant and addressed by the Special

Workers’ Compensation Appeals Panel, we agree with the Panel that “Beyond the oral notice given

by the plaintiff to people authorized to receive notice, we find the written form filed by the plaintiff
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with the defendant satisfies the requirement of written notice as to the physical injuries of the

plaintiff.”

Conclusion

We affirm the judgment of the trial court, finding that the plaintiff suffered a compensable

injury while employed by the defendant and that he is totally and permanently disabled. Costs of this

appeal are taxed to the defendant, Lear Corporation.

___________________________________ 

FRANKF.DROWOTA,III,CHIEF JUSTICE