Appeals Board decisions from 2016, part two

By Jane Salem

Welcome back to my recap of weighty Appeals Board decisions for the second half of 2016. Last week, I looked at a few compensation hearing appeals and started into the vast majority of the Board’s docket these days: expedited hearing appeals. Because there are so many, I won’t mention them all, but will instead mention a few containing some of the more significant rulings.

Let’s dive in with panels and the authorized treating physician designation. In Crumble v. Express Employment Services, the Board considered whether the employer’s proffered panel was legally sufficient. The Board found the trial court hadn’t adequately addressed the question of whether the physician in question was the authorized treating physician and remanded the case. Lamm v. E. Miller Construction, Inc. also presented a discussion of the prerequisites to conferring ATP status.

The Board offered more guidance on medical benefits. In Coolidge v. City Nashville Winery, LLC, the judges examined the medical necessity of a proposed treatment rendered by an unauthorized provider, where the employee sought plastic surgery to correct an alleged work-related “deformity” to her nose. The Board sided with the panel physicians’ opinion that it was unnecessary. As for second opinions, the Appeals Board disagreed with an injured worker’s contention that he was entitled to one on the issue of “diagnosis” alone. Rather, in Petty v. Convention Production Rigging, et al., the Board held the statute entitles a second opinion in cases involving “surgery and diagnosis.”

A pair of cases asked whether an employee made a “meaningful return to work.” See Dennis v. Polymer Components. But also, where an employee rejected a proposed accommodation because it required her to work days, where she previously worked at night, the Board concluded she made that decision for “purely personal reasons” in Hackney v. Integrity Staffing Solutions, Inc., et al.

Issues involving utilization review at last made their way up to the Appeals Board. First, in Morgan v. Macy’s, the Board additionally examined the new treatment guidelines and the presumption of medical necessity for utilization review purposes, holding that an employee who wishes take advantage of the presumption has the initial burden of proving the recommended treatment explicitly follows the treatment guidelines or is “reasonably derived therefrom.” (Morgan is also noteworthy from an evidence standpoint:  The Board concluded that a typed notation purporting to be the initials of a physician was insufficient to satisfy the requirements regarding the admissibility of electronic medical records.) The Board took a second look at UR in Venable v. Superior Essex, Inc., holding that it was within the scope of the trial court’s authority to assess the validity of the utilization review reports and determine the relative weight to be given those physicians’ opinions as well as other expert medical opinions. Further, the Board ruled that a utilization review physician’s primary role is to assess whether the recommended treatment is medically necessary, appropriate, and efficient to treat the employee’s medical condition, without considering causation.


Finally, the Board offered guidance on discovery in King v. Big Binder Express, LLC, et al., reversing the trial court’s finding that the employer’s request for an independent medical examination was unreasonable.

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