By Judge Amber Luttrell
Lawyers and doctors.
We’re a bit of an odd couple, considering the very different training, education and ways of thinking we generally possess. Yet, in the workers’ compensation system, we bring these differences together to (hopefully) ensure that injured workers get the care they need and that employees and employers alike receive fair treatment.
I gave a presentation at the Bureau’s Annual Physicians’ Educational Conference this summer about what judges look for from physicians. After surveying my colleagues, I created the following list, in no particular order, of our suggestions and tips about what we do and don’t need from physicians.
We look for corroborative expert proof of the employee’s testimony.
In pre-reform cases, an injured worker could satisfy the burden of proof for medical causation by offering testimony that a work accident “could be” the cause of the worker’s medical condition, when there was corroborating lay testimony from which it could be reasonably inferred that the incident was in fact the cause of the injury.
The 2013 Reform Act substantially altered this standard by amending the definition of “injury.” The Appeals Board held in Scott v. Integrity Staffing that the employee’s lay testimony, without corroborative expert testimony, did not constitute adequate evidence of medical causation.
We look for opinions from physicians not nurses or physician’s assistants.
Again, per the Appeals Board, a nurse is not an expert who can testify as to medical causation; see Dorsey v. Amazon. Where nurse practitioners or physician assistants are heavily involved in treatment, keep in mind the medical causation opinion must come from the supervising physician.
We look for medical records signed by physicians.
Specifically, the Court looks for a physician’s signature or electronic signature at the end of the record for admissibility at a hearing. This is true even when nurse practitioners or physician assistants treat the injured worker. In that case, the supervising physician’s signature is necessary. See Morgan v. Macy’s.
We look for an expert medical opinion regarding permanent impairment.
Once the employee reaches maximum medical improvement, the Court looks to the treating physician’s record for a medical opinion on permanent impairment and the supporting page and table of the AMA Guidelines, 6th Edition. If the treating physician fails to provide this opinion in his or her records, ask.
We don’t need magic words.
The Court looks for the physician’s opinion on medical causation. However, the Appeals Board noted in Panzarella v. Amazon that “We do not conclude that a physician must use particular words or phrases in the statutory definition of ‘injury’ to establish the requisite medical proof to succeed at trial. Thus, a physician may render an opinion that meets the legal standard without couching the opinion in a rigid recitation of the statutory definition. What is necessary, however, is sufficient proof from which the trial court can conclude that the statutory requirements of an injury as defined in the statute are satisfied.”
We don’t need credibility assessments.
Consider this example from a real case about an employee’s third visit with his treating physician:
John is describing sharp pain in his low back area. His reaction to my attempt to examine his back was ridiculous. John is showing all the signs of malingering. I would like to help him subjectively get over the pain by reassuring him. I gave him the choice to accept my reassurance and be a productive person or reject it and be a back cripple.
Examples like this sound like the provider’s personal judgments of an employee rather than a medical opinion and can potentially lessen the weight of the physician’s opinion with the Court.
In conclusion…
Judge Luttrell sits in Jackson.
Above all, we want honest medical opinions, conveyed in plain English, that we can thoughtfully weigh along with the other facts and circumstances of the case and within the framework of Tennessee workers’ compensation law.
Thankfully, we see that in the vast majority of cases that come before the Court.
From the Bench 