By Judge Thomas Wyatt, Chattanooga
With apologies to Jerry Seinfeld, what’s the deal with acronyms?
I mean, are we so busy that we can’t say we live in the United States? Do we really save time by saying we live in the U.S. of A?
And it can be confusing. If you are a college football fan, you know what someone means when they say “SEC.” But what if the discussion is among stockbrokers? If you overhear someone talking about “JFK,” are they discussing the former president or flying to New York City?
When I practiced law, my firm was Summers & Wyatt. We bought blue coffee cups emblazoned with a large gold “S&W.” People thought we got a good deal from a cafeteria that closed in downtown Chattanooga, instead of associating the cups with an effort to market our firm.
Here at the CWCC — I mean the Court of Workers’ Compensation Claims — we have dozens of acronyms. But in this blog post, I’m going to focus solely on a couple: when discussing medical benefits, we often catch ourselves talking about UR or the ODG.
“UR,” of course, stands for Utilization Review. Much maligned by employees and ATPs — oops, authorized treating physicians — Utilization Review is a pre-admission system to review whether recommended treatment is medically necessary. Tenn. Comp. R. & Regs. 0800-02-06-.01 et seq. (Click here to read the Utilization Review rules in their entirety.)
The providers who review treatment under Utilization Review almost always analyze the treatment under the “ODG.” This acronym refers to a set of evidence-based treatment guidelines adopted by the Bureau to assist physicians in determining whether treatments under consideration are reasonably necessary.
Finding out exactly what “ODG” stands for proved difficult. The applicable Bureau rule refers to the “Work Loss Data Institute ODG Guidelines.” Tenn. Comp. R. & Regs. 0800-02-25-.02(3). A brief internet search identified that “ODG” stands for “Official Disability Guidelines.” So, when referencing the “ODG Guidelines,” does that stand for the Official Disability Guidelines Guidelines? Probably not. Specific to treatment guidelines, the acronym “ODG” seems to refer to the company, ODG by mcg, that markets the treatment guidelines. Maybe ODG is one acronym that really does save us time.
Now let’s look at some of the legal and procedural issues in this area of law.
An employee or treating physician may appeal to the Bureau’s Medical Director to overturn a Utilization Review decision to non-certify recommended treatment. Tenn. Comp. R. & Regs. 0800-02-06-.04(d). The Medical Director’s upholding of a non-certification of treatment does not end the employee’s right to seek the recommended treatment. The employee may petition the Court of Workers’ Compensation Claims to overturn the non-certification. See generally Venable v. Superior Essex, Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS 56 (Nov. 2, 2016). Also, just last week, the Appeals Board held in Stephens v. Quality Private Care dba Volunteer Staffing that, under the circumstances of that case, the trial courts have the authority to order an employer to authorize or pay for medical treatment that falls outside the ODG.
Tennessee Compilation Rules and Regulations 0800-02-06-.07(6) provides a seven-day period after receipt of the Medical Director’s decision in which any party may request a hearing to obtain the Court’s decision on the medical necessity of the disputed treatment. If the employee fails to petition the Court to challenge non-certification of treatment, the non-certification stays in effect for six months. Tenn. Comp. R. & Regs. 0800-02-06-.07(5). The treating physician may seek a new certification of non-certified treatment within the six-month period if the physician documents a material change in the employee’s need for the treatment or shows information that the previous reviewers did not use in non-certifying treatment. Tenn. Comp. R. & Regs. 0800-02-06-.06(7)(a).
In a recent case, an employer argued that an employee who did not petition to challenge the Medical Director’s non-certification of treatment within the seven-day period was required to wait six months before petitioning the Court to challenge the non-certification. The Court concluded a petition could be filed outside the seven day period but held it could not decide the substantive issue until after the six-month period expired. The case in question was Moses v. Five Star Food Service, Inc., No. 2020-01-0875 (June 21, 2021). (Full disclosure: I was the trial judge. The employer didn’t seek an appeal, so the issue remains without an appellate decision.)
Certain medical decisions come to the Court of Workers’ Compensation Claims with statutory presumptions. Tennessee Code Annotated section 50-6-204(a)(3)(H) affords a presumption of medical necessity to the treatment recommendations of the authorized treating physician. Section 50-6-204(a)(3)(I) provides: “Following the adoption of treatment guidelines pursuant to § 50-6-124, the presumption of medical necessity for treatment recommended by a physician or chiropractor selected pursuant to this subsection, or by referral, shall be rebuttable only by clear and convincing evidence demonstrating that the recommended treatment substantially deviates from, or presents an unreasonable interpretation of, the treatment guidelines.”
In Morgan v. Macy’s, 2016 TN Wrk. Comp. App. Bd. LEXIS 39 (Aug. 31, 2016), the Appeals Board held that the above presumption only applies where the treating physician used the treatment guidelines in making the recommendation in question. However, if it’s not shown that the treating physician used the guidelines, the Board held the physician’s treatment recommendation is still afforded the presumption of correctness in subsection 50-6-204(a)(3)(H). That recommendation may be overcome by a preponderance of the evidence.
To close, I hope you’ll find this article helpful in an arcane, but important, area of workers’ compensation practice. IMHO you will. As for acronyms, be thankful this article is not about disability benefits. You know, TPD, TTD, PPD, PTD. It’s enough to give you PTAD (Post-Traumatic Acronym Disorder).