Board Considers Noncompliance, Letters to Experts

By Jane Salem, staff attorney, Nashville

The Appeals Board released an opinion yesterday, reiterating the fairly well-settled parameters of medical noncompliance in the Workers’ Compensation Law. The decision also held that trial judges have an obligation to scrutinize letters seeking expert opinions for their accuracy regarding the facts and law. 

In Marie Bailey v. Amazon, the employee reported an injury to her arm and shoulder when struck by a large cart at work.

The employer, Amazon, initially accepted the claim and authorized treatment with Dr. Robert Sass. But after two missed appointments, it denied the claim.

After the denial, Amazon’s attorneys sent a “medical questionnaire” to Dr. Sass, and he responded several months later. In the letter, Amazon told Dr. Sass that, “per Tennessee law, … medical noncompliance occurs when patients fail to attend a single scheduled doctor’s visit.” The letter also said that Bailey had “missed at least three regularly scheduled visits.”

The letter then asked if “this medical noncompliance [had] a negative impact” on Bailey’s treatment; Dr. Sass responded “yes.” The doctor also responded “yes” to the following questions:

  • “Is it your medical opinion that [Employee]’s medical noncompliance acted as an intervening event that impacts her recovery and treatment from her right hand contusion?”
  • “Do you believe that [Employee]’s medical noncompliance and the delay in her treatment that it caused contributed more than fifty percent (50%) in causing her current condition?”

Bailey requested an expedited hearing. She testified that she missed the first appointment because she had been diagnosed with COVID-19, and she was unaware of the second missed appointment.

The trial court credited her testimony, gave the questionnaire little weight, and ordered additional medical benefits. Amazon appealed.

The Opinion

The Workers’ Compensation Law states that if an injured employee “refuses … to accept the medical or specialized medical services that the employer is required to furnish,” then the employee’s “right to compensation shall be suspended … while the injured employee continues to refuse.”

The Board found it “questionable” whether Bailey’s actions constituted noncompliance. Bailey testified, without refutation, that she had COVID and that she didn’t know about the second appointment. This wasn’t a “refusal” to accept medical services, the Board reasoned.

Moreover, even if it were, the remedy was to “suspend” compensation during the period of noncompliance. Instead, without seeking any explanation for the missed appointments, Amazon denied the claim.

The Board was unpersuaded by Amazon’s efforts to support its denial by later sending Dr. Sass the “medical questionnaire.”

The judges took issue with the letter’s statement that “Per Tennessee law, medical noncompliance occurs when patients fail to attend a single scheduled doctor’s visit.” The Board said that that contention is “unsupported by any statutory or case law reference.”

Moreover, the letter suggested that medical noncompliance can serve as “an intervening event.” But, instead of using that phrase in the context of medical causation, which is how that term is typically used in workers’ compensation cases, it asked whether the noncompliance was “an intervening event that impacts her recovery and treatment.” The Board observed, “Dr. Sass’s response to that question is irrelevant to the issue of whether Employee suffered a work-related injury that resulted in the need for medical care.”

The Board rejected Amazon’s argument that, by assessing the content of the questions posed to Dr. Sass, the trial court became an “advocate” for Bailey. The Rules of Evidence instruct a judge to consider “[t]he facts or data … upon which an expert bases an opinion or inference.” Moreover, case law says, when evaluating expert proof, a trial court is allowed to consider “the information available” to the experts.

Thus, the trial court had an obligation to consider the facts or data underlying Dr. Sass’s opinions, including the hypothetical conditions specified in the question.

Further, while an employer isn’t “obligated to condition [its] questions to experts in such a way as to present a beneficial case for the Employee,” the manner in which questions are worded is relevant in considering the expert’s responses.

“An employer risks a trial court giving little weight to an expert’s response to a question that contains one or more misstatements of law or fact,” the Board wrote. “In short, we agree with the trial court’s assessment of the weight given to Dr. Sass’s responses to the medical questionnaire.”

The Board concluded, “Employer’s decision to deny Employee’s claim based on her missing two medical appointments, without considering any explanation as to why she missed the appointments, is unsupported by Tennessee law. The delay in treatment caused by Employee’s unsupported denial of the claim is far more onerous under the circumstances of this case than the two missed medical appointments.”

Signed responses from physicians to letters seeking their expert opinions are admissible in workers’ compensation cases only at expedited hearings, per Court rules. In this case, because the opinion is the result of interlocutory review, Amazon cannot further appeal.

Photo by Judge Deana Seymour, Memphis

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