By Judge Brian Addington, Gray

In 1993, a Croatian janitor found an injured white stork. The stork couldn’t fly, so the janitor decided he needed to take care of it. He allowed the bird inside his house and made a place for it to roost, but upon further evaluation decided it best for the bird to live outside. Since the bird couldn’t do it itself, he made a nest for her on top of his house. Not only did this let the bird be outside in a more natural environment but also exposed the stork to other storks. 

One stork that visited became the bird’s suitor, and the pair bonded. Because the injured bird couldn’t fly, the suitor had to rebuild the nest on occasion, fish for them both and the pair’s offspring, and teach the young storks to fly. The pairing lasted for 15 years until the injured bird died. 

What a great story of going beyond just caring—not only by the man who found the stork, because he continued to care for the stork when its mate and their chicks flew south, but also by her mate. 

In worker’s compensation cases, most injured workers can take care of themselves after an injury. However, some injured workers need both someone to care for them and their home environment modified, so they can effectively deal with the consequences of the injury.

Sometimes  injured workers can be cared for by relatives and friends, but other times they need expert medical care and supervision. Injured workers could need someone to simply assist them a few hours a day or 24-7, or they may need advanced nursing care. The injured workers may also need their homes modified for them to get the medical treatment they need, which helps in their recovery.

The care or housing modifications the injured workers need sometimes causes disputes between them and the insurance company. The problem often arises when the treating physician is unclear whether the care or modifications merely benefit the injured employee or are necessary and reasonable, as the Worker’s Compensation Law requires. 

A case that discussed what is necessary for the injured worker to prove is Lindsey v. Reeves. In this 2011 opinion, the trial court ruled for the injured worker and found that a hydrotherapy tub and modifications to a bathroom were medically necessary. The only evidence the employee presented at trial were medical notes that the employee obtained from his doctors stating that the tub would benefit him. The physicians didn’t write a prescription or order. As for the modifications to the bathroom, he only presented his lay testimony that he needed them. 

The Supreme Court reversed, holding that because the doctors didn’t order or prescribe the tub, mere suggestions the employee would benefit from them were insufficient proof under the law. Also, they found his lay testimony insufficient to support the bathroom modifications. The Court held that he required expert medical proof to support the need. 

Later, the Appeals Board took up a similar issue at the interlocutory stage in Rhea v. Titan Transfer, Inc., 2023 TN Wrk. Comp. App. Bd. LEXIS 16 (Apr. 11, 2023). The Board discussed physician recommendations for long-term nursing services and held, “[F]or the recommendations of a treating physician to be deemed within the scope of ‘reasonable’ and ‘medically necessary’ treatment, and therefore compensable under section 50-6-204(a)(1)(A), it must: (1) comply with generally  accepted medical standards; (2) be clinically appropriate as to type, frequency, extent, site, and duration; (3) not be primarily for the convenience of the patient or provider; and (4) be the most cost-effective alternative among reasonably equivalent alternatives.” But the Board also determined that any treatment recommended by an authorized physician is presumed necessary and the burden shifts to the employer to show it is not, by a preponderance of the evidence. 

In Rhea, the Appeals Board affirmed the trial court’s order for nursing services because the employer offered no evidence to rebut the authorized physician’s recommendation. (The case proceeds to a final compensation hearing in a month or so.)

Both parties often wish for the best for an employee after an injury, but sometimes an issue arises when a physician orders long-term or nursing care, or housing modifications. Both Lindsey and Rhea offer helpful analyses for the parties to use at trial or in settlement negotiations, so that injured workers can get the help they need, and in the most appropriate and cost-efficient ways.   

A recent dusting in east Tennessee. Photo by the author.