By Jane Salem, staff attorney, Nashville
The Tennessee Workers’ Compensation Appeals Board had another busy year in 2022.
This article will recap cases (which you really need to read!) on all things medical: causation, reasonably necessary treatment, noncompliance, etc. We’ll also look at a couple cases about other categories of benefits.
As practitioners and judges know, this issue pops up often.
By statute, the causation opinion of a physician chosen from a panel is presumed correct. But what if the employee chose more than one physician from an employer’s panels? In Johnson v. Inspire Brands d/b/a Blazin Wings, the Board concluded that both physicians’ opinions are entitled to the presumption of correctness.
The Board affirmed an expedited order finding the presumption in favor of a panel-selected physician was rebutted in Grissom v. AT&T Servs. An unauthorized physician wrote that the employee’s condition was causally related to the work accident “by greater than 50% considering all causes,” and nothing in the record refuted his diagnosis or the employee’s testimony that the surgery he performed improved the employee’s symptoms significantly.
The presumption was also rebutted in Lawson v. Amazon.com. There, the trial court correctly adopted the causation opinion of the unauthorized physician, who’d followed the employee’s progress over the course of several months and gave an opinion with the benefit of diagnostic studies and knowledge of his condition after conservative treatment. In contrast, the authorized physician had stated that the employee provided a history of pain while moving an item at work but later wrote that “no specific incident occurred.”
In Braden v. Mohawk Indus., the Board concluded that nothing in the 2013 Workers’ Compensation Reform Act “expressly abrogated or limited the scope of the direct and natural consequences rule.” It further reasoned that, if the rule is to be re-interpreted in light of the Reform Act, the Supreme Court should do so, not the Board.
In Hagan v. Potomac Corp., the Board found no error when the trial court gave greater weight to the causation opinion of an orthopedic specialist who performed surgery, over a specialist in internal medicine who didn’t actually examine the employee but signed off on the reports of a nurse practitioner.
In an accepted claim involving the aggravation of a pre-existing condition, the Board affirmed a trial court ruling that an employee didn’t show that his need for surgery was more than 50 percent caused by work. In Brawley v. Construct All USA, the employee argued that, because he had no pain before the work accident but suffered it afterward, the need for surgery was primarily related to the pain arising from the work accident. The Board disagreed, reminding that the statute also requires an employee to prove that the work accident was more than 50 percent of the cause of the need for the proposed medical treatment.
In another aggravation case, Enriquez v. Defender Servs., the Board agreed with the trial court that an employer’s physician’s opinion didn’t carry the day, where he saw the worker once, but the treating physician examined him on multiple occasions over the course of more than two years, and the employee testified unrefuted that he had no problems before the work accident.
In yet another aggravation case, the Board affirmed the trial court’s compensation order denying a claim. An authorized (but not treating) physician concluded his condition and need for medical treatment didn’t arise primarily out of his employment. Meanwhile, the employee’s expert testified that the work accident aggravated an underlying condition, but the aggravation was temporary and resulted in no anatomical change. The case is Hanna v. Gaylord Opryland.
Medical necessity and other benefits
As for cases regarding medical necessity, the Board held in Williams v. People Ready that a referral specialist physician becomes the treating physician, when the authorized treating provider made the referral, and the employer failed to take appropriate action within three business days—so that referral/specialist’s treatment recommendations are then presumed to be medically necessary. Both the trial court and the Board were unpersuaded by the employer’s argument that it didn’t know about the referral within the three-day window.
In Edwards v. PeopLease, the Board wrote that a treating physician’s opinion that objective studies didn’t show an anatomical change in the employee’s knees caused by the work incident was sufficient to show the trial court erred in ordering bilateral knee replacements, and they weren’t medically necessary despite the employee’s history of not having problems before the injury.
A statement by the authorized physician that he has no further treatment to offer the employee isn’t, standing alone, “treatment” that gets the presumption of medical necessity under Tennessee Code Annotated section 50-6-204(a)(3)(H), according to the Board in Burns-Herrera v. State Industries.
The mechanism of injury was unclear in Wilson v. Randstad. So, the Board held that the trial court erred in ordering medical benefits at the interlocutory stage. The employee appeared to argue that he suffered both an acute injury and a gradually-occurring injury, but he didn’t explain how or when the acute injury occurred, how or when the gradual injury manifested itself, or how the acute injury and gradual injury related to each other, if at all.
The Board found no noncompliance with treatment on the employee’s part, where the employee testified without refutation that she missed an appointment because she had COVID-19 and she was not told about a later appointment. Even if this were medical noncompliance, the employer’s remedy is to suspend compensation during the period of noncompliance rather than denying the claim. The case is Bailey v. Amazon.com.
The Board vacated the trial court’s mileage reimbursement order, which the statute allows for travel to medical appointments “located outside a radius of fifteen (15) miles,” in Gentry v. Arapazuma. The calculation isn’t dependent on any particular route an employee may choose to take, the Board held. Rather the employee must present evidence showing that the medical provider is located outside a radius of 15 miles of either his residence or his workplace.
Another “medical” case looked at an employee’s entitlement to additional treatment under an open medicals provision of her settlement agreement. The Board held that, even though the authorized physician determined that an employee required no further medical treatment before the trial court originally awarded open medicals, the court didn’t err in later ordering additional treatment, because the employer relied on the doctor’s opinion that was based on diagnostic testing and other information dating back two years, the employee credibly testified to continued pain, and the physician hadn’t refused to see her. The opinion is Lee v. Federal Express.
In a permanent total disability case, Lewallen v. Home Healthcare of E. Tenn., the Board wrote that expert vocational proof may be a “preferred method” of proving this, but it’s not necessary in every case where permanent total disability is alleged.
Finally, in Williams v. Methodist LeBonheur Healthcare, the trial court correctly found that, although the rate at which dependents receive death benefits is based on the deceased employee’s average weekly wage, the potential duration of those payments isn’t tied to the deceased employee’s wages. It is instead subject to an across-the-board limitation based on the state’s average weekly wage as of the date of death.
In the next article, we’ll look at the remaining 2022 Appeals Board opinions, to include two hot topics—notice and summary judgment—and, well, everything else.
History all around us.