Board Releases Opinion on Panels, Medical Causation

By Jane Salem, staff attorney, Nashville

The Appeals Board released another opinion from its March 24 oral arguments last week. Barnes v. Jack Cooper Transport, a review of an expedited hearing order, offers guidance on improper panels and medical causation.

William Barnes, a truck driver, reported to Jack Cooper Transport that his left knee gave way while he was climbing a ladder at work in July 2018.

Barnes suffered a work-related injury to the same knee in 2013, when Jack Cooper had workers’ compensation coverage with a different carrier. He underwent surgery and settled the claim with open medicals, and he returned to work.

Barnes denied having any problems with his knee after returning to work until mid-2018.

He treated with an urgent care clinic shortly until providers there made an orthopedic referral. Jack Cooper offered a panel, and Barnes chose a doctor, but he declined to treat him. The adjuster told Barnes to select from the remaining two physicians. He requested another physician, but the carrier refused. He then selected Dr. Blake Garside.

Dr. Garside saw him twice and recommended a knee replacement. After the second visit, he noted, “His current symptoms in my opinion represent exacerbation of his pre-existing osteoarthritis. … [I]t is likely that his current osteoarthritis represented posttraumatic osteoarthritis from his previous work injuries.”

Jack Cooper then denied the knee replacement. It also followed up with Dr. Garside by providing medical records and asking for a revised opinion. Dr. Garside read the records and replied that the July incident “did not contribute more than 50% in causing the need … to undergo a total knee arthroplasty,” and the July incident “did not contribute more than 50% in causing his current left knee issues, which are related to preexisting left knee osteoarthritis.”

Shortly after the carrier denied surgery, Barnes started treating on his own at Seven Springs Orthopaedic & Sports Medicine, the same practice where he treated in 2013.

Over the coming months, he saw several different physician assistants, but their records were electronically signed by medical doctors as well. Barnes testified that he couldn’t remember if he saw a doctor.

A September 2019 report signed by a PA and Dr. Jason Jones read, “In my medical opinion, I believe this is a new injury that exacerbated a pre-existing condition. It is hard to determine the extent of the injury. However, he was previously doing well by his report up until re-injury.”

Two months later, Dr. Jones wrote a letter describing both accidents, concluding: “It is my opinion the second injury is the cause of his ongoing pain despite having underlying osteoarthritis since the first injury which was remedied surgically. … At this point, I believe his second injury is the cause of his ongoing pain, which was an exacerbation of osteoarthritis.” Dr. Jones recommended a knee replacement.

After an expedited hearing, the trial judge ordered Jack Cooper to authorize the surgery.

The Opinion

The Appeals Board affirmed in part and reversed in part.

On the first issue, the trial court held that the panel of physicians was invalid, so Dr. Garside’s opinion wasn’t presumed correct. The Board agreed.

Writing for the Board, Presiding Judge Tim Conner cited the statutory panel requirement and wrote, “[T]he law is clear that it is the employee, not the employer, who has the option of requesting a replacement physician on a panel under circumstances where the physician originally selected declines to accept the employee as a patient.”

As for the second issue, medical causation, the Board reminded that an aggravation of a preexisting condition may be compensable under certain circumstances: (1) a medical expert concludes that the work accident contributed more than 50% in causing the aggravation, and (2) the work accident was the cause of the aggravation more likely than not considering all causes.

Judge Conner wrote, “[W]hen analyzing medical evidence, we conclude it is necessary to consider the relevant medical records and expert opinions in their entirety in an effort to understand the intended meaning of those terms as used by any particular physician.”

Dr. Garside concluded that Barnes’ need for surgery arose primarily from his pre-existing osteoarthritis. He was “unequivocal.” In comparison, Seven Springs expert opinions are “problematic,” per the Board.

The Board wrote that it was unclear from the Seven Springs records whether a physician was actually expressing the medical opinions contained in those records.

But more troubling was Dr. Jones’ letter stating that the most recent work accident was “the cause of his ongoing pain.”

“[H]e neither opined that the exacerbation of Employee’s pre-existing osteoarthritis was the primary cause of the need for the total knee arthroplasty, considering all causes, nor did he use words to that effect,” Judge Conner wrote.

He continued, “It is well-settled that in cases where the employee alleges an aggravation of a pre-existing condition, evidence of a mere increase in pain caused by a work accident, with no accompanying evidence that the work accident advanced the severity of the pre-existing condition or caused an anatomic change in that condition, is insufficient to support a finding of compensability.”

The workers’ compensation law doesn’t allow further review of an Appeals Board opinion as to expedited hearing orders.


Photo by Judge Deana Seymour.

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