Board Offers Guidance on Panels

By Jane Salem, staff attorney, Nashville

Yesterday, the Appeals Board affirmed a trial court order that an employer must provide a panel of physicians, in a case presenting unusual medical proof as its defense.

In Hawes v. McLane Company, Inc., the employee alleged a back injury. When he reported it, he participated in a “triage call” arranged by McLane in which a doctor said he needed an “electrodiagnostic functional assessment” test, or “EFA.”

The test was later performed by a technician under the remote supervision of Dr. Naiyer Imam, a Tennessee-licensed neuroradiologist located out of state. The technician also performed an examination under Dr. Imam’s supervision using “EFA guided technology.”

Dr. Imam noted that “both evaluations demonstrated chronic changes as evidenced by the bilateral inappropriate muscle usage” and “hyperactivity with range of motion and positional changes as well as inappropriate muscle usage.” Dr. Imam compared the post-injury EFA test results with a baseline EFA that was performed when Hawes was hired. He found “no acute pathology or change in [Employee’s] condition,” and, “there does not appear to be a need for treatment on an industrial basis.”

The results were included in a report signed by MaryRose Reaston and Clay Everline. Dr. Reaston’s undergraduate degree, Master’s, and Ph.D. are in psychology, and she holds a Certificate of Electromyography and Clinical Neurophysiology. Dr. Everline is a medical doctor located in Hawaii who isn’t licensed in Tennessee.

Both doctors agreed the EFA demonstrated no acute pathology or change in Hawes’ condition from the baseline test but cautioned that “[c]linical correlation and screening for any contraindications to suggested treatment modalities is recommended.”

Based on the report, McLane declined to provide workers’ compensation benefits, so Hawes requested an expedited hearing.

Dr. Reaston testified at the hearing that she is the “chief executive officer, co-founder, and chief science officer” of Emerge Diagnostics, a company “in the business of providing better diagnostics for musculoskeletal disorders and performing electrodiagnostic functional assessment services.” She explained that an EFA “measures muscle function [and] indirectly measures nerves and [the] clinical significance of disc pathology.” Dr. Reaston confirmed that “medical personnel” place electrodes on patients but stated the test is ordered by a medical doctor.

The trial court ordered McLane to provide a panel of physicians, and it appealed.

The opinion

The Board began its analysis by reminding that both Section 50-6-204(a)(3)(A)(i) and Rule 0800-02-01-.06(1) require an employer to provide a panel of physicians on receipt of notice of a workplace injury and the employee expressing a need for medical care.

McLane argued that Rule 0800-02-01-.06(4) allows employers to direct injured employees to onsite, in-house or other similar employer-sponsored medical providers before providing a panel.

The Board wrote: “[W]hile an employer may direct an employee to see an ‘employer-sponsored medical provider’ priorto the provision of a panel, this examination does not replace a panel or relieve that employer of its obligation to provide a panel of physicians[.]”

McLane contended an employer has an “absolute right” to decline providing a panel of physicians when it has evidence establishing a defense. The Board agreed an employer has a right to investigate and deny a claim based on its factual assertion that the alleged work accident didn’t occur as reported, or as the result of asserting an affirmative defense.

But, “an employer’s assertion that an employee has no medical evidence supporting his or her claim does not, standing alone, excuse it from the statutory obligations under section 50-6-204(a)(1)(A).” The Board held that early on in McCord v. Advantage Human Resourcing.

The Board cited Berdnik v. Fairfield Glade Cmty. Club, where an employee alleged a back injury. She wasn’t provided a panel and sought treatment on her own. The employer denied the claim and several months later scheduled an examination with an orthopedic physician it chose. The doctor concluded that no objective evidence showed the employee’s complaints were related to a work injury. The trial court ordered the employer to offer a panel, but the Board reversed, reasoning that there was an uncontradicted medical opinion addressing causation.

Hawes’ case is distinguishable, the Board wrote. In Berdnik, the employee sought treatment on her own for several months and “had ample opportunity” to present medical proof at the expedited hearing to refute the employer’s expert’s causation opinion. Moreover, the employer’s expert was a board-certified, Tennessee-licensed orthopedic surgeon who personally examined the employee and expressed an opinion that her complaints related to a preexisting back condition.

In this case, instead of providing a panel before denying the claim, McLane directed Hawes “to a particular medical technician who, under the supervision of a physician located out of state, conducted a single diagnostic test. Employer then relied on those findings as a basis to deny Employee’s claim and refused to provide a panel of physicians.”

The Board continued, “Importantly, the testing ordered by Employer’s provider did not establish that no compensable work accident occurred; instead, it purported to show that there were no recent, acute physiological changes caused by the reported work accident.

“While the technology and test results relied upon by Employer may be relevant in determining the ultimate compensability of Employee’s claim, it does not relieve Employer of its statutory obligation to provide a panel of physicians when a work accident has been reported, Employer has no factual evidence to contest the occurrence of the reported accident, no affirmative defense has been asserted, and medical treatment has been requested.”

Photo by Kim Weaver, legal assistant, Knoxville.

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