### IN THE SUPREME COURT OF TENNESS EE AT KNOXVILLE Septem ber 5, 2002

Session
JACKIE MARTIN v. LEAR CORPOR ATION 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’ c ompe nsation case, we are called upon to deter mine 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 de fenda n t claims that the physician it hired to make an independent medical ex aminati on of the plaintiff is protected from compelled testimony under Tennessee Rule of C ivi l Procedure 26.02(4)(B). Howeve r, the Tennessee’s Workers’ Compensation L aw, specifically Te nnessee Code Annotated

sections 50-6- 204(f) and 50-6-235(c), clearly permits the admission of testimony, including a medica l report f orm, of an examining physician pa id for by the employ

er in a workers’ compensation case. There fore, we hold that, pursuant to Tennessee Code Annotated sections 50-6-204(f) and 50-6-235(c) , the trial court did not err b y a

dmitting t he phy sician’smedical r

eport. Tenn. Code Ann. § 50-6-225(e); Judgment of the Trial Court is Affirmed
F RANK F. D ROWOT A , III, C. J., delivered the opinion of the court, in which A DOLPHO A. B IRCH , J R ., J ANICE M. H OLDER , and W IL LI AM M. B ARKER , JJ. joined. E. R IL EY A NDERSON , J., Not P artic ipati ng.
Steven H. Trent and Jennifer P. Keller, Johnson City, Tennessee, for the a ppellant, Lear Corporation. James M. Davis, Morristown, Tennessee, for the appellee, Jackie Martin.
OPINION
Factua l Background The plaintiff, Jackie Martin, worked as a seat back assembler f or the defenda

n t, Lear Corpora tion, loca ted in Ham

blen Count

y, Tennesse e, from N ovember 9, 1989, un

til September 4, 1998. At the time of trial, Martin was fifty-seve n years old. He

is married, the father

of two grown children, and a veteran of twenty -four ye ars of mi li ta ry s er vi ce in th e U ni te d S ta te s A rm y. Martin served two tours of duty in Vietnam. As a re sult of his military ser vice, h e suffe

rs from Po st Traumat ic Stress Disorder (“PTSD”), which was diagnosed in 1996. Martin’s employ ment at Lear involved repetiti ve motion in which he lifted the back portion of seats at a production rate of 1,7351 The trial cou rt did not differentiate the effect of the va rious medical and psyc

hiatric injuries on th e p la in ti ff ’s vo ca ti on al di sa bi li ty. -2- per day. On September 23, 1998, Martin fi led a com plaint see king wor kers’ c ompensat

ion benef its, alleging that his physical

injuries resulted from his work at Lea r and that his PTSD was aggravated by t hose injur ies.
At trial, the plaintiff testifie d that he b egan to experience pain in his r ight elbow and left shoulder in late 1996. In early

1997, Martin reported his injury to his supervisor, Do n S ho ck le y, 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 worke rs’ compensation physicia ns provided by L

ear. Greer treated Martin and referred Martin to phy sical therapy and to another doctor, Dr. Michael Bra tton.
In the sp ring 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 aga in visited Dr. Greer, who refer red Mar tin to a ne urologi st, Dr. Sc ott Bridg es. Following his visit with Dr. Bridges, Martin notified the nurse and a sa fety offic er at Lear that he had been diag nosed with carpal tunnel sy ndrome, t endinitis in both elbow s, bursitiswith 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 Le ar’s request, neither doctor gave Martin an impairment rating . Martin testified that, as a result of his employment with L ear, he now suffers fro m depression , sleeplessness, and constant , disablin g pain th at preve nts him fro m perfor

ming man

y da y- to-day activitie s.
On April 24, 2000, Lear filed a motion requesting the court to order an independe nt medical exam ination by a neurolog ist. Lear’s motion was gra nted, and Dr. Steven Sanders per formed th e examination on Augu st 28, 2000 . On Nove mber 7, L ear notif ied Martin that Dr. Sa

nders wa s a consulting ex pe rt on ly, an d t ha t h e w as no t e xp ec te d t o t es ti fy. Then, on December 5, Martin filed a notice that he would file Dr. Sanders’ form C-32 medical re port, obtained by Martin fr om Dr. S anders, to be u sed as e vi den ce u nde r Te nne ss ee C ode Ann ot ate d se cti on 5 0-6 -23 5(c )(1 ). Le a r objected, claiming th at Tennessee R ule of Civi l Procedure 2 6.02(4)(B) protects from discovery the opinion of

a consult ing exper t who will not be called as a witness.
Th e trial court found in favor of Martin and admitted the C-32 report into evidenc e. 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%. Rely ing on the opinions of Drs. Ambrosia, Bratton, Sanders, and Gutch, and the op inion of Dr . Russell Mc Knight, a psychiatrist, the trial c ourt found that Martin wa s permanently

and totally d

isabled a nd awar ded him wo

rkers’ compensa

tion benefits ac co rd in gl y. 1-3-

Before the Special Workers’ Compensation Appeals Panel, Lear a sserted 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-re lated injuries aggravated Ma rtin’s psycholog ical condition, and by awarding Mart

in permanent and total disability. The Pane l affirmed the judgment of the trial court as to all is su es e xcept 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 awa rd of permane nt and tota

l disability

is suffic iently

supporte d by

the plain tiff’s ph ysi cal injur

ies. We gran ted L ear’s motion for r

eview a nd now af firm the t rial cou rt’s judgment.
Standard of Review
In w orke rs' compensation cases, the standard of r eview is de novo upon the record, accompanied

by a presumpt ion of the correctness of the trial court' s factual findings, unless the preponderance

of the evidence is otherwise. Tenn. Code Ann. § 50-6-22 5(e)(2 ); Manneryv. WalMart Distrib. Center , 69 S.W.3d 193, 196 (Tenn. 2002). Analysis Examining Physician’s Report
Tennessee Code Annotated section 50-6-116 de clares the Worke rs’ Compe

nsation sta

tute to be reme dial in na

ture, and direct s that the s tatute “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). “Accor dingly , ‘these

laws shou ld be rat

ionally but libera lly construed to promote and adhere to the Act's purposes of secur in g benefits to thos e worke rs who fa ll within its coverage.’ ” See Wattv. Lumbermens Mut. Cas. I ns. Co. , 62 S.W.3d 123, 128 (Tenn. 2001) (quot ing Lindsey

v. Smith & Johnson, Inc. , 601 S.W.2d 923, 926 (Tenn.1980)).
This case involves the interaction between the Tenne ssee 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. Ci v. P. 1 (200 2); however, as t his Court ha s previou sl y hel d, “spec ific statutory provisions typically

will be given force

and effect over more g eneral statutory provisions.” Patterson v. Tennessee Dept. of L abor and Workforce Dev. , 60 S.W.3d 60, 64 (Tenn. 2001); see also Five Star Expre ss, In

c. v. Dav is , 866 S.W.2d 944, 946 (Ten n .1993). T herefo re, as to issues in worke rs’ comp ensation 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 phy sician’s report at trial becaus e the d efenda nt des ign ated the physician a consul ting expert . Rule 26.0 2(4)(B) provides :-4-

A party may

no t dis cover the identity of , facts known by, or

opinions held by an expertwho has been consulted by another party

in ant icipati on of litigation or preparationfor tria

l and who i s not to be c alle d as a witness at trial except as provided in Rule 35.02 or up on a sho wing 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 5 0-6-204(f) state s, Any physician whos e servi ces are furnished or paid for by the employer a

nd who treats or makes or is pre sent at a ny e xaminati on of an injured employee may be requi red to testi fy as to an y knowled ge acquired by such physician in the cour se of such t reatmen

t o r examination as same relates to the injury or disability arising therefrom.
Tenn. Code Ann. § 50-6-20 4(f) (1 999). Fu

rthermor e, Tenne sse e Code A nnotated section 50-6- 235(c) p ermits an

y pa rty to use med

ical rep orts in lie

u of depo sitions as e

vidence at trial. (1) Any party may in troduce d irect testimony from a phy sician through a written medical report on a form established by the commis sioner of labor and workforce developm ent. The commi ssioner s hall establish by r ule the f orm for th e repor t. All parties shall have the right to take the phy sician’s deposition on cross examination concer ning its contents . . .. (2 ) The written medical report of a treating or examining physician shall b e admissible

at any stag e of a workers’ compensation claim in lieu of a deposition upon oral examination, if notice of inten t to us e the sworn statement is provided to the opposing party or c ounsel not less than twenty (20) days befor e the date of intended use . . .. Tenn. Code Ann. § 50-6-235(c)(1) & (2) (1999).
We agr ee with t he plaintiff. While Rule 26.06 protects most “consulting experts,” the Legislature

has made it clear that in workers’ compensation ca ses, physicians hired by the employer who treat, make, or are present at physical examinations of worker s’ compensation plaintiffs “may be required

to testify.” Furthe

rmore, section 50-6-235(c)(1) allows the phy sician’s medical report to be introduced at trial in lieu of testimony. I n this case, the requirements of s ection 50-6-204(f) have bee n satisfied: Lear, the employ er, hired Dr. Sanders, a medical doctor, to per form an i ndependent

medical examination of the plaintiff, Jackie Martin. Martin obtained a for m C-3 2 medical report from Dr. Sanders, and, on Decembe r 5, 2000, Martin fileda

notice with the court that-5-

he planned on using Dr. Sanders’ medical repor t 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 Novembe r 7, 2000 letter to Martin indicating that Dr. Sanders was to be a consulting expert has no impact on our analy sis. The clear implication o f the Worke rs’ Compensation statute is thata physician fur nished by the employ

er who “tre ats, make s, or is pr esent” at a physical

examination of the employee ca n never be deemed a consulting expert fo r the pur pose of prote cting th at phy sician’sreport.
Lear ha s pr ovided authority to support its arg ument that examining experts deemed consulting experts a

fter exam i nations a

re protected from forced testimony

. See, e .g. White v. Vander bilt Univ. , 21 S.W.3d 215, 224 (Ten n. Ct. App. 1999)(su gges ting tha t a party could shie

ld the findings of a doctor who had been classified a s a consulting expert before being dep osed), Durflinger

v. Artiles , 727 F.2d 888 (10 th Cir. 1984), Reeves v. Boy d & Sons, Inc. , 654 N.E.2d 864 (Ind. Ct. App. 1995). Importantly , however, none of the cases on whic h Lea r reliesare wor

kers’ compensation cases. Therefo re thi s authority is inapposite because Tennessee Code Annotated section 50-6-204(f) did not apply

. Ad di ti on al ly, Lear cites two unre ported workers’ compensation cases at the trial level that provide Rule 26.02 pr otection to consulting experts. One case, however, involved a voca tional expert, which does not fall under section 50-6-204(f). I n the other case, the trial court, which allowed the defendant

to preve nt its examin

ing phy sician fr

om testify ing, wa s evident

ly not made aware of section 50-6-204(f). The trial court’s order sp ecifica lly notes that Tennesse e’s Worke rs’ Compensation Law “seems not to have addr essed the specific issue presented.” Lear, acknowledgingthe existence of Tennessee Code Annotated section 50-6-204(f), a sks this Court to find the statute unconstitutional under a separation of power s argum

ent, relying

on State v. Mallard , 40 S.W.3d 473 (Tenn. 2001). In Mallard , we held that a particular criminal statute that conflic ted with Rule o f Evidenc e 404(b) was unco nstitutiona l. Since the statute

in questi o n conflictedwith a rul e of evid ence, th is Court wa s concer

ned abou t undermin

ing the judi cial determination of logical and legal rele v ancy. See i d. at 483. We recognized that the General Assembly can establish rules of evidence in furthera nce of the substa

ntive law , but its ab ility

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 rule s governing the practice and pr ocedure 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 cl early

is disting uishable from Mallard . First, the statute at issue in this case does notimpermissibly conflict with Rule 26.02 because it mere ly limits the appl icat ion of Rule 26.02 in certain circumstances — when an employ er in a workers’ compensation case hires a phy sician to treat, make, or be present

at a physical e

xamination of the employee . Employers are not precluded2 Van Tran v. St ate , 66 S.W.3d 790, 804 (Tenn. 2001) (stating that the legisla ture setspublic policy).
-6- 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 pol

icy concer ns. Without the prote ction of th is rule, litigants would be r eluctan t to consul

t experts for fea

r that the ir effortswould prove counter-productive, in that any unfavor able fin dings co

uld be use d again st

them. Further , it would be

unfair for one party

to reap the benefits of the other party ’s efforts. However, public policy ge

nerally is set by

the Legislature, 2 and, in pa rticular , the Worke

rs’ Compensation Law is entirely a c

reature of statute. See, e .g. , Crump v. B & P Const. Co. , 703 S.W.2d 140, 144 (Tenn. 1986); Perry

v. Trans america

Ins. Group , 703 S.W.2d 151, 154 (Tenn. Ct. App. 1985). As such, the Legislature

is the app

ropriate body to set the p olicy

that gov erns wor

kers’ c ompensat

ion case s. By enacting Tennessee Code Annotated section 50-6-204(f), the Legislature is advancing the remedial purpose o f worke rs’ comp ensation

cases: th at of sec

uring be nefits to t hosewho fall within its covera ge. The purpose of this provision in particular seems to be that the legislature did not want employ ers, with gre ater re so urces, to send injured employee s to many phy sicians for physica l examinations until the employer rec eives a favorable result. There is, howe ver, no requirement of shared information or forced

testimony with rega

rd to the employer’ s use of non-phy sician experts or physicians who consult without examining the employ ee. Theref

ore, section 50-6- 204(f) i s not unconstitutional as the de fendantcontends . The L egisla ture has not wholly

suspende d Rule 26.02(4)(B)’s application. It ha s merely provided an alter native pr ocedure in a limited

and spec ific cont ext — worker s’ compe

nsation c ases. Accordingly , we conclude that the tr

ial cour t in this ca se did not err in allowing Martin to introduce into evidence Dr. Sander s’ C-32 form. Total and Permanent Disability
Th e defenda

nt asser ts that the

re is not e

nough e vidence to support

the trial c ourt’ s determination of total and permanent disability. We disag ree. 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, a nd there was evidence that the plaintiff’s disability was cau sed by

the pla intiff’s work for the defendant. I n addition, after reviewing the record, we are of the opinion that theSp ecial Wor kers’ Com

pensatio n Appeal s Panel er red in conclud ing that Dr. McKnight’s testimony was too speculative to support an award based o n psychologic al injuries. In our view, the rec ord does not preponderate aga inst the trial court’s finding that the work -related injuriesaggr

avated t he plaint i ff’s psycholo gi cal problems. Therefore, we re ject the Panel ’s finding

on this issue

and aff irm the jud

gment of the trial court.
With respect to the notice issue raised by the def endant and ad dressed by the Spec ial Workers’ Compensation Appeals Panel, we agree with the Pane l that “Bey ond the oral notice given by the plaintiff to people authorized to receive notice, we find the wr itten form filedby the plaintiff-7-

withthe defendant satisfies the require ment o f written notice as to the phy sical injuries of the plaintiff.”
Conclusion We affirm the judgment of the trial court, finding that the p laintiff

suffer ed a comp ensable injury while employed by

the defendant and that he is totally and permanently

disabled. Costs of thi s appeal are taxed to the defendant, L ear Corporation.

___________________________________

FRANK F. DROWOTA, III, CH IEF JUSTICE