By Jane Salem, staff attorney, Nashville
The Appeals Board held oral arguments yesterday by videoconference on the topics of an employee’s proper impairment rating, an employer’s right to a medical examination, and whether a court properly ruled that a party should be prohibited from introducing expert testimony at trial.
First up was Hart v. ThyssenKrupp Elevator, where the trial judge had to choose between two opinions on the employee’s impairment from one doctor.
Jeannie Hart injured her shoulder at work, and the authorized treating physician, Dr. Jason Hutchison, performed surgery to repair a labral tear and biceps injury but also performed a distal clavicle resection due to AC arthrosis.
The doctor assigned a six-percent rating. He explained in his deposition that ordinarily for a labral tear and biceps tendonitis, a three-percent rating would be appropriate. He also acknowledged that the AC arthrosis that led to the distal clavicle resection was not a work-related condition. However, due to “the true injury she had at work,” the FCE results, and her “outcome,” Dr. Hutchison thought the six-percent rating was correct.
ThyssenKrupp contended that the court should’ve accepted the three-percent rating because the distal clavicle resection repaired a non-work-related condition. Its attorney, Hailey David, argued that the additional procedure was “completely incidental” to the work injury. She stressed that the Workers’ Compensation Law only covers work-related injuries.
David said, “[Dr. Hutchison] made it clear that the distal clavicle excision was done to address a non-work-related issue while he had her on the operating table for the primary problem. And he did testify several times that the reason for the surgery was the labral and the biceps pathology. It was not for the AC arthrosis.”
Moreover, David argued, if Dr. Hutchison’s goal in performing the resection was to improve Hart’s function, why did he assign a higher rating after performing it?
But Hart’s attorney, Jonathan May, countered that Dr. Hutchison was cross-examined regarding the impairment rating in his deposition, yet he didn’t revise his rating. May maintained that ThyssenKrupp should’ve hired its own expert or sought an evaluation from the Medical Impairment Rating Registry if it wanted to challenge his opinion.
Further, he said, “If only one physician gives an impairment rating into evidence, then that position is the impairment rating that the court is going to be expected to follow.” By discussing the potential for a three-percent rating, the doctor here was merely “showing his math,” according to May. Additionally, if the judge had accepted the lower rating, it would be inserting his own medical opinion rather than adopting the expert’s medical opinion.
The next two cases involved interlocutory orders.
In Bennett v. SureTech Construction, the employer requested that the employee undergo a medical evaluation in Lebanon, Tennessee, with Dr. Jeffrey Hazlewood. Preston Bennett, who became a paraplegic from the work accident, had already moved to Maryland after his injury to be closer to family. He objected to the request for an evaluation in Tennessee, asserting that his injuries made long-distance travel too difficult. The trial court agreed.
SureTech’s attorney, Courtney Hart, emphasized that an employer has a statutory right to an examination as long as the request is reasonable. This particular request was “completely reasonable,” she said, arguing that SureTech wants the worker to be evaluated by a Tennessee physician who is familiar with Tennessee workers’ compensation law.
“We just think that Tennessee is the appropriate state for an exam, and if his medical condition didn’t bar him from making the trip [to Maryland] the first time, I don’t know that he’s in any different physical condition now than he was at the time of the move. So he should be able to make the trip back,” Hart said.
She later added that Bennett became injured in Tennessee and chose to file a Tennessee claim, knowing that at some point he would have to return to Tennessee to prosecute his case.
Attorney Michael Large, representing Bennett, countered that his client suffered a “catastrophic injury” that SureTech accepted. He relocated to Maryland only to avoid having to move into a nursing home. Bennett suffers from bed sores (decubitus ulcers) and is on a colostomy bag and a catheter. Forcing him to travel “would put him in a great deal of pain and with a high likelihood of reinjury or aggravating his existing decubitus ulcers,” Large contended.
Large also argued that Bennett didn’t “choose” Tennessee because this isn’t a dual-jurisdiction case. He added that where Bennett now lives, SureTech already has had no trouble finding well-qualified doctors to serve as treating physicians, and they likewise could find a qualified doctor to perform a medical evaluation. He noted that Virginia doctors use the same version of the AMA Guides as doctors in Tennessee.
Finally, in Carter v. Ricoh Americas, the trial court excluded the employer’s vocational expert from testifying at trial because its attorney didn’t comply with a deadline to disclose the witness. Among the employer’s arguments were that restrictions imposed as a result of COVID-19 made it impossible to hire an expert to conduct an in-person vocational evaluation within the time frame set out by the trial court in its scheduling order.
Ricoh’s attorney, Carolina Martin, said “we did comply with the order to the extent it was possible at the time.” On April 6, 2020, the trial court ordered her to file a notice disclosing the identity of the expert on or before April 15, 2020. Instead, she filed a timely notice stating that Ricoh still planned to hire an expert but had not been able to retain one due to COVID-19 restrictions. She characterized that notice as an “implied motion” for an extension of time. About eight weeks later, she filed another pleading identifying her vocational expert.
Martin said “people were scrambling” during the early days of the pandemic and the Governor’s stay-at-home orders. She thought she’d be able to find an expert within the deadline. She communicated with a prospective expert in April, who said she was unable to perform an in-person evaluation due to the pandemic, but she was taking cases that were records-reviews only. Martin didn’t disclose her in April because the expert hadn’t been retained yet, and, in Martin’s opinion, it would’ve been “shady” to disclose her if she hadn’t actually been hired.
In addition, Ricoh also didn’t want to force an in-person evaluation too early, Martin said, due to Carter’s age and comorbidities that put him at additional risk if he got the coronavirus.
In contrast, James Carter’s attorney, Brian Dunigan, said the issue turns on whether the judge abused his discretion, which is “a highly deferential standard.” Dunigan said the notice was not an implied motion because “there is a mechanism that they could use to ask for more time. They could have filed a motion at any time for relief from the deadlines[.]” Moreover, even if the in-person evaluation couldn’t be done in April, nothing stopped Ricoh from retaining and identifying its expert then.
Dunigan acknowledged that the ruling has high stakes: his client says he is permanently and totally disabled, and without a contrary expert, the employer will have a more difficult time presenting its evidence. Regardless, he said the ruling wouldn’t result in injustice. “Trial judges sometimes have to make stern decisions. And just because a decision is stern in a case like this doesn’t mean it’s unjust,” Dunigan said.
By statute, the Appeals Board will issue its opinion in Hart within 45 calendar days because it was a compensation hearing. Since the other two cases were interlocutory, the Board will release those opinions within 20 business days.