By Jane Salem, Staff Attorney, Nashville

A pair of injured employees wants to have their physician “present” at an independent medical examination via videoconference or live-streaming. In one case, the judge allowed ordered that videoconferencing be arranged; in another case, a different judge declined to order it. Who got it right?

The Tennessee Workers Compensation Board will decide that issue of first impression, along with three other cases on appeal, after hearing oral arguments on Oct. 1 at the Supreme Court in Nashville.

In Caldwell v. Federal Mogul Motorsports Corp., Judge Robert Durham held that the worker’s physician may attend by videoconference. Judge Joshua Davis Baker denied the same request in Williams v. CoreCivic, reasoning that the plain meaning of the word “present” at the examination permits physical attendance only.

Judge Baker wrote that, per Merriam Webster, “present” means “being in view” or “at hand.” At oral arguments, Knoxville defense attorney Peter Frech gave additional definitions from Black’s Law Dictionary: “in attendance” and “not elsewhere.”

Frech argued, “It means I can hand you something if you need to look at it.”

He compared it to oral argument. “If I had my assistant come up here with an iPad and videoconferenced my way in, I don’t think it would be received very nicely by the Board here today. Because the bottom line is, I’m expected to be present. It means ‘physically present.’”

Frech said that after Judge Durham granted Caldwell’s request, Federal Mogul tried to find a physician who would perform an IME under those conditions but couldn’t. The doctors cited HIPAA concerns. The practical effect of allowing videoconferencing at an IME is it takes away the employer’s right to an IME, Frech said.

Frech further argued that an employee may waive his HIPAA rights, but he can’t waive the obligations it places on doctors.

But Nashville employee lawyer Steven Fifield emphasized that “the purpose of this employee right is to serve as an integrity check on the defense medical examiner. … The employee has the right to make sure that the defense medical doctor does what they say they’re going to do and records down what gets said correctly.”

Further, allowing an electronic presence is cost-effective for parties and doctors alike, because a physician won’t have to close his practice for a half or full day to travel to an IME. This is important with routine injuries where the overall case value is low, said Fifield.

The physicians who cited HIPAA concerns likely don’t understand the nuances of that law, he stated. As for security, Fifield said they’d use platforms listed as secure in HIPAA.

Pre-DCN deposition limits questioned

In another case presenting a question on discovery, the Board heard arguments about the timing and limits on depositions.

In Tennyson v. Saver’s Painting and Wallcovering, LLC, the injured worker refused to be deposed because he said the deposition was too early at the pre-dispute certification notice stage and he’d already responded to written discovery. Judge Allen Phillips disagreed, allowing the deposition but limiting it to an hour.

Frech represented the defense in this case as well.

“There’s just some confusion out there that exists that there’s a requirement that we attend mediation before I’m entitled to a deposition of their client,” he said. “There’s just a refusal to even allow a deposition or sometimes even written discovery.”

Frech added that the Rules of Civil Procedure require good cause for a court to impose a time limit. Responses to written discovery alone aren’t good cause – especially in this case, where the judge didn’t even see the written discovery. But also, allowing depositions before mediation allows the employer to be better informed about the case. Otherwise, he said, “What opposing counsel wants us to do is come to a mediation and open our checkbooks up without any evaluation of what the case is [worth].”

Jackson lawyer Chuck Holliday disagreed, arguing that the rules allow depositions within the timeframe in the discovery plan in a scheduling order. A judge can issue a scheduling order only after a dispute certification notice. Therefore, the Bureau’s rules generally don’t contemplate pre-DCN depositions.

Holliday said allowing depositions at early stages of cases slows the pace, which frustrates one of the goals of the Reform Act: to make cases move faster.

Judge admitted testimony from forgetful expert

In another case, the appellant asked the Board to rule on the admissibility of expert medical testimony.

In Ailshie v. TN Farm Bureau Federation, Judge Dale Tipps denied the employer’s motion in limine seeking to exclude portions of a doctor’s deposition testimony.

At oral arguments, Nashville defense lawyer Ryan Malone said a judge acts as a “gatekeeper” under the Rules of Evidence to determine whether an expert’s opinion is reliable. In this case, the doctor’s opinion wasn’t trustworthy because at her deposition, the doctor couldn’t remember her methodology when determining the worker’s impairment rating or the grade-modifiers she used under the AMA Guides.

Malone said, “She had never in her life been trained in the AMA Guides; she had never read the entire AMA Guides; and she couldn’t even say with any certainty that she had even read the entire chapter she was attempting to apply.”

But evidentiary rulings are reviewed under an “abuse of discretion” standard, said Columbia lawyer Richard Matthews, representing Ailshie. “The issue becomes whether Judge Tipps applied an incorrect standard in making his ruling, or the ruling is against logic or reason,” Matthews said. “That’s a pretty high bar to reverse a trial court’s decision.”

In addition, Matthews said the doctor is a Board-certified neurologist who explained her methodology in her report. The judge can decide how much weight to attach to her opinion, but he can’t exclude her testimony as long as she used the Guides.

Judge rejected causation letter at trial

Finally, the Board heard arguments about the admissibility of another doctor’s opinion ̶ this time on causation ̶ in Clay v. Signature Healthcare.

In that case, Judge Baker didn’t consider a treating physician’s opinion because his opinion was expressed in a letter and not on a C-32 or via deposition testimony. The employee said it was hearsay. Judge Baker agreed.

The parties had deposed the doctor twice. At the second deposition, the doctor suspended the proceeding after defense counsel presented him with additional medical records. The doctor said he would review the new information and write a letter with his causation opinion.

Nashville lawyer Laurenn Disspayne contended to the Board that at that the deposition, the attorneys agreed to the admissibility of the doctor’s letter addressing causation. Opposing counsel Julie Reasonover, also of Nashville, vehemently maintained there was no stipulation and said the appeal was meritless.

Judge Baker denied a “Motion to Enforce Stipulation” approximately two months before the compensation hearing. Signature Healthcare didn’t seek an interlocutory appeal of that order but rather made an offer of proof on the admissibility of the letter at the compensation hearing.

By statute, the Board must issue its rulings no later than forty-five business days after holding oral argument for Clay and within 20 days of argument in the remaining cases. When the opinions are released, this blog will announce the rulings.