By Jane Salem, staff attorney, Nashville
Welcome back to a review of 2021’s appellate opinions. In this article, we’ll recap the Appeals Board opinions involving course and scope, medical causation and reasonable necessity, including utilization review, and an opinion about the Medical Impairment Rating Registry.
But first… please read the opinions! Because I’ll mention just one aspect of each case. Frequently, the opinions contain more than one significant ruling. Also, keep in mind that I’m not going to touch on the memorandum opinions, which sometimes contain hidden nuggets, too, and can be cited persuasively.
Okay, let’s jump in; the water is fine.
A pair of opinions examined the “course and scope of employment.”
First, in parking lot cases, the Board held it was “immaterial” whether an employer owned or maintained a parking lot where the employee became injured. Rather, “the question is whether the employee is likely to prove [the incident] occurred in the course and scope of her employment and that it arose primarily out of her employment because of a hazard to which the employment had exposed the employee while she was engaged in a work-related task.” The case is Rowe v. Mitsubishi Motors N.A.
The Board affirmed in Harris v. Nashville Center for Rehabilitation and Healing. That case involved a worker injured at a nursing home while trying to evade a flying cockroach (yuck). The trial court correctly found sufficient proof that insects were part of the work environment or presented a hazard of the employment, based on the worker’s uncontroverted, detailed testimony alone.
Now for medical causation.
In Smith v. TrustPoint Hospital, the Board affirmed the trial court’s acceptance of the authorized treating physician’s opinion, because that physician had the benefit of seeing the employee’s condition during surgery, which confirmed his pre-operative diagnoses, and that doctor had “followed Employee as a patient and saw her lack of progress with conservative care firsthand.”
The employee’s credibility was the point of attack to challenge medical causation in Jones v. AT&T Services. The employer argued the “inconsistencies” in his testimony about the alleged injury-causing event made him not credible, and since the panel physician based his causation opinion in part on the employee’s statements, his opinion wasn’t valid. The trial court and the Board disagreed, reasoning that the employer didn’t offer contrary medical proof, and it had the opportunity to “vigorously cross-examine” the doctor.
In Harrison v. Chattanooga Staffing, the authorized treating physician didn’t give an opinion that satisfied the definition of “injury” in the statute, and it was the only expert proof. So the trial court properly concluded she wasn’t likely to prevail at trial. The Board reminded that the burden to show that an injury or a recommended course of treatment is causally related to a work accident rests on the injured worker, not the authorized physician.
Speaking of the definition of “injury,” two cases from last year are instructive.
The Board affirmed in Grimes v. YRC, where a physician testified that an employee’s “work-related injury and subsequent rotator cuff injury and repair . . . exacerbated a preexisting condition,” and that her job duties “resulted in arthritic change in both of her shoulders.” But the doctor didn’t say that an exacerbation of her preexisting osteoarthritis was the primary cause of the need for shoulder replacement, considering all causes, nor did he use words supporting that conclusion. So the trial court properly held that this was insufficient expert medical proof to support the employee’s contention that her need for surgery was primarily caused by her work injury.
Enriquez v. Defender Services offered a similar ruling. In that case, an authorized physician, not selected from a panel, stated that the need for a total knee replacement was “related” to the work injury, but he didn’t state that the work injury primarily caused the need for the knee replacement or words to that effect. So, the trial court properly accepted the employer’s physician opinion, irrespective of the presumption of correctness given an authorized doctor’s opinion.
Medical causation was also disputed in Moore v. Beacon Transport. The Board affirmed the trial court ruling that an employee didn’t overcome the presumption of correctness attached to an authorized physician’s causation opinion.
But the case is noteworthy for another reason: the Board split over whether, on review, in cases where the expert medical testimony is offered by deposition, it should apply an abuse-of-discretion standard (the majority’s position), or review the deposition evidence independently of the trial court’s review and make their own determination as to where the preponderance of the expert medical evidence lies (the concurrence). This case is now pending before the Supreme Court Special Workers’ Compensation Panel.
Medically necessary treatment
Interestingly, all of these cases involved utilization review, to some degree.
First, in Stephens v. Quality Private Care d/b/a Volunteer Staffing, the Board held that a trial court has the authority to order an employer to pay for medical treatment that falls outside the ODG, because the Treatment Guidelines Rules state that each individual clinical situation and patient are unique, and a proper application of the guidelines requires “judgment.”
And Walls v. United Technologies Corp. held that the trial court didn’t err in finding that an employer didn’t rebut the presumption of medical necessity, where the employer relied largely on the opinion of a utilization review physician who didn’t directly address the issue of medical necessity but merely concluded the employee was a “suboptimal” candidate for surgery.
Also, in Smith v. Memphis National Parts Warehouse/Daimler Trucks, the Board affirmed a ruling that the employee didn’t show the medical necessity of proposed surgery. The critical issue was the presence or absence of nerve root compression in the lumbar spine, but the employer’s physician found that diagnostic tests didn’t show objective evidence of nerve root compression, a utilization review physician recommended non-certification of the surgery because all “appropriate conservative measures had not been tried,” and the assistant medical director agreed with the non-certification.
Finally, the MIRR case. The Medical Impairment Rating Registry regulations clearly define a “dispute of degree of medical impairment” to include cases where a physician gives the opinion that no permanent impairment exists but has also issued permanent restrictions. So, where the medical records don’t mention the underlying source or cause of an employee’s permanent restrictions–rather, they are silent in that regard and only attribute the existence of the employee’s condition to a remote injury ̶ the trial court didn’t err by allowing the MIRR evaluation to proceed. The case is Davis v. Amazon.com.
In the next installment, we’ll look at summary judgment, panels, and everything else.