Misbehavior isn’t ‘Noncompliance’ Justifying Cutting off Open Medicals

By Jane Salem, staff attorney, Nashville

The Appeals Board held last week that an employer must offer a new panel of physicians to an employee under a grant of future open medical benefits, after the authorized treating physician discharged the employee from his care. The Board wasn’t persuaded that the employee’s alleged misconduct amounted to noncompliance, alleviating the employer from providing future medical care. But the Board also sternly cautioned employees against “abusive conduct” at the doctor’s office.

Facts

In Friday’s opinion, Belinda LeMaire injured her foot working at Lowe’s Home Centers, LLC, which accepted the claim. She initially treated with a podiatrist, who referred her to pain management. Lowe’s offered a panel, and LeMaire selected Dr. Jeffrey Hazlewood. He diagnosed complex regional pain syndrome, and after reaching maximum medical improvement she continued treating with him, although she declined his additional treatment recommendations.

After a compensation hearing, the judge awarded open medical benefits but denied LeMaire’s request for a new panel. The court reasoned that although she had declined Dr. Hazlewood’s recommendations, he remained “able, available, and agreeable” to continue treating her.

Post-judgment, LeMaire returned to Dr. Hazlewood once. It went poorly.

Dr. Hazlewood testified that LeMaire “attack[ed] [his] integrity throughout the whole visit.” She also showed him a picture of Jesus and stated that “[He would be] the only one that has a chance to heal her.” Dr. Hazlewood left the room and asked his nurse practitioner to examine LeMaire, which LeMaire didn’t permit. Dr. Hazlewood testified that LeMaire expressed a “distrust” of any doctor who treated her after the work injury. He wrote a letter discharging her from his practice that day.

At trial, the court determined LeMaire was entitled to a new panel, and Lowe’s appealed.

The Opinion

Lowe’s raised three issues on appeal: (1) whether the court erred in determining LeMaire met her burden of proving that additional medical treatment was reasonable and necessary; (2) whether the trial court erred in ordering a new panel when she refused to accept medical care from her authorized physician; and (3) whether her conduct at her final appointment with Dr. Hazlewood warranted termination of her right to future medical benefits.

First, Lowe’s argued LeMaire didn’t satisfy her burden to show that future medical treatment was reasonably necessary based on Dr. Hazlewood’s testimony that he didn’t “think there is anything else we can do.”

The Board disagreed, applying Lee v. Federal Express Corp. In Lee, also a post-judgment dispute, the employer declined to set an appointment with the authorized treating physician, despite an order awarding open medicals, because the physician had said the employee needed no future medical treatment. The trial court ordered the employer to authorize an appointment, and the Board affirmed, reasoning that the trial court’s order finding the injury compensable coupled with the employee’s ongoing complaints of pain were sufficient for the court to order the employer to authorize an appointment.

The Board emphasized that both LeMaire and Lee involved requests for general medical treatment of compensable injuries rather than requests for specific medical treatment, which would require evidence of causation, reasonableness, and necessity.

Second, Lowe’s argued that LeMaire’s refusal to accept the treatment offered by both Dr. Hazlewood and the podiatrist amounted to noncompliance, barring her request for another panel. Lowe’s admitted that the law doesn’t require an employee to undergo “optional” medical treatment recommended by an authorized physician. But Lowe’s contended that her request for a new panel was essentially a request for a second opinion that she wasn’t entitled to.

The Board disagreed, reminding that Dr. Hazlewood issued a discharge letter and testified that he wouldn’t see her again. Moreover, Lowe’s offered no evidence that the podiatrist was willing to see her again.

Third, Lowe’s argued that LeMaire’s behavior at her last appointment with Dr. Hazlewood justified the termination of her right to future medical benefits. The Board again disagreed, concluding that Lowe’s cited no binding authority supporting that proposition.

The Board cited Newell v. Metro Carpets, LLC, where the employee posted derogatory comments about the treating physician on social media, causing the physician to discharge him. The trial court ordered the employer to replace that physician on the panel or provide a new panel. The Board affirmed, stating that no evidence showed that the employee refused to comply with any reasonable request for examination or that the employee refused to accept the medical services the employer was required to furnish.

The Board wrote: “Similarly, in this case, Employee attended an appointment with Dr. Hazlewood, which had been scheduled by Employer, and Dr. Hazlewood elected to end the appointment based on what he perceived to be inappropriate conduct on Employee’s part. That is his prerogative. Although Dr. Hazlewood’s decision to end the doctor-patient relationship may have been reasonable under the circumstances, it does not preclude Employee from receiving reasonable and necessary medical benefits causally related to the work injury to which she is entitled pursuant to the terms of a final judgment. Moreover, even if Employee’s behavior results in difficulties locating a qualified physician willing to treat her, we conclude it does not amount to a refusal to accept medical treatment as contemplated by Tennessee Code Annotated section 50-6-204(3)(A)(i).”

The Board affirmed.

Takeaways

Note: what follows are the musings of a staff attorney—so please read the opinion and reach your own conclusions.

The decision is important because it makes a distinction between requests for specific treatments at the interlocutory phase, versus generalized treatment, post-judgment, in compensable claims. The burden on an employee before this case wasn’t 100% clear. It is now.

The opinion ended with a footnote warning that employees cannot “mistreat doctors or their staffs, repeatedly make derogatory comments to or about medical providers, or engage in other abusive behaviors without consequence.” Further, “In appropriate circumstances, a court could deem such conduct medical noncompliance as provided in Tennessee Code Annotated section 50-6-204(d)(7).”

Did this case present an issue of first impression? Maybe, given the lack of binding authority about the effect of an employee’s alleged misconduct. Or maybe that note is a subtle suggestion that a Supreme Court Panel might see it differently—or that the statute should be amended to encompass circumstances described in this case? Or perhaps an alternative and more egregious set of circumstances might be deemed as noncompliance so pervasive as to terminate open medicals—although the statute speaks of “suspending” benefits not terminating them all together.

So many questions! It’s an area that’s ripe for further exploration. Again, in my opinion.

Lemaire represented herself and prevailed in this appeal, which the Board certified as final. However, Lowe’s has 30 days to appeal to a Supreme Court Panel.