By Jane Salem, staff attorney, Nashville

Post-judgment, when an authorized doctor recommends surgery and the employee wants a second opinion, the second opinion is “treatment” that an employer must provide. If they don’t, they’ll be ordered to pay the employee’s attorney fees in securing an order to that effect.

So held the Appeals Board recently in McCool v. Professional Care Services.

It’s been roughly a dozen years since the Reform Act took effect. Within the past two years or so, cases presenting post-judgment issues are finally starting to percolate. This decision offers timely and helpful guidance in this new-ish type of dispute.

Facts

Martha McCool was injured while working for Professional Care Services in 2019, and the parties settled the claim in 2023, leaving medical benefits open.

One of the designated physicians ordered surgery that Professional Care Services authorized. But when McCool requested a second opinion before undergoing the procedure, it denied that.

The trial court ordered Professional Care Services to furnish the second opinion and pay McCool’s attorney’s fees, without ruling on the amount of those fees. Professional Care Services appealed. The Board vacated the order because the amount of fees was undetermined and reserved ruling on whether Professional Care Services must authorize the second opinion.

On remand, the trial court again ordered the second opinion but denied fees, so both parties appealed. The Board held oral argument in October. The most recent opinion affirmed the ruling granting a second opinion but reversed the denial of fees.

The opinion

Both issues required the Board to interpret statutes.

First, section 50-6-204(a)(3)(C) states, “When the treating physician … refers the injured employee, the employee shall be entitled to have a second opinion on the issue of surgery and diagnosis[.]”

Professional Care Services argued that the treating physician must write an order for a second opinion. The Board disagreed, looking mostly at legislative intent from amendments in 2002 and 2013.

They concluded that the only prerequisite to an employee’s entitlement to a second opinion examination under 204(a)(3)(C) is a surgical recommendation from an authorized treating physician.

“[T]he General Assembly’s intent was to recognize that surgery, which is both invasive and traumatic, is a specific form of medical treatment that merits additional consideration in the form of a second opinion examination when requested by the employee. In support of this interpretation, we note that the Legislature specifically stated that an employee ‘shall be entitled to have a second opinion on the issue of surgery,’ and that a second opinion examination is the ‘employee’s decision,’ indicating their intent to assign that right to the employee.” (Italics in original).

The Board added that nothing in the language of this subsection limited this entitlement only to cases where an authorized physician recommending surgery has “ordered” a second opinion.

Second, as to fees, the Board interpreted section 50-6-226(d)(1)(A), where a trial court may award reasonable attorney’s fees when the employer “[f]ails to furnish appropriate medical … treatment or care…provided for in a settlement[.]”

In this case, the settlement agreement read: “Employer agrees to pay for reasonable and necessary future medical expenses for the work injury under Tennessee Code Annotated section 50-6-204. Drs. [_____] are the authorized treating physicians for future care[.]”

The Board pointed out that the agreement didn’t limit Professional Care Services’ future obligations to cover only medical treatment “ordered by an authorized treating physician” but instead stated it would cover “any medical expenses” to which McCool might be entitled under the statute.

The Board added that during oral argument, the parties agreed that a second opinion qualifies as “treatment or care” under section 50-6-204. In a footnote, the Board explained:

“For purposes of this analysis, we conclude a second opinion examination is no different than a medical consultation requested by an authorized treating physician, a medical examination requested by an employer under section 204(d)(1), a medical impairment registry examination requested under section 204(d)(4), or an independent medical examination ordered by the court under section 204(d)(8). All such examinations fall under the umbrella of ‘treatment or care’ regardless of which party or parties are obligated to pay for such an examination.”

The Board agreed with McCool that subsection 50-6-226(d)(1)(A) doesn’t require an examination of the employer’s conduct as would be required under subsection 226(d)(1)(B).

“[W]e are not called upon to determine whether Employer’s actions were ‘unreasonable.’ Employer either provided the medical benefits as described in the court-approved settlement agreement, or it did not.”

Professional Care Services didn’t provide a medical benefit to which McCool was entitled under the terms of both the settlement agreement and section 50-6-204. Therefore, her attorney was entitled to a fee, and the Board reversed that portion of the order.

The Board then considered whether the reversal required another remand. They wrote that in both her original and supplemental motions on fees, McCool’s lawyer included an affidavit and a line-by-line itemization of the time spent on the case. Professional Care Services consistently objected to her entitlement to fees but not the amount.

The Board cited precedents where appellate courts have modified a trial court’s judgment without remand. For example, if an appellate record contains the requisite data for making the “computations,” an order can be modified without a remand.

But also, the Board reasoned that by statute, the Legislature empowered the Bureau of Workers’ Compensation to develop and maintain “an organizational structure to ensure fair, equitable, expeditious, and efficient administration of the workers’ compensation law.” (Italics in original).

In this case, the doctor recommended surgery in April 2024, and over 18 months had passed since. Another remand—and potentially another appeal—would add further delay. “Under the particular circumstances of this case, we find such a process would be the opposite of ‘expeditious’ and ‘efficient,’” the Board wrote.

McCool’s lawyer spent 29 hours on the case at $350 per hour, both of which were reasonable according to the Board.

Takeaways

Just a reminder that these are the opinions of a staff attorney, not the whole Court. Read the case, please, and don’t cite to this article.

That said, it seems that when an authorized doctor orders surgery, whether it’s pre- or post-judgment, and the employee wants another opinion, an employer must provide it. Period. (And, as Judge Weaver pointed out during oral argument, it’s inexpensive).

If an employer doesn’t furnish this, it risks liability for an employee’s attorney’s fees. Questioning this entitlement, even in “good faith,” might be costly. It could involve a penalty referral, too.

Further, that footnote defining “treatment” is important and will likely be cited in a variety of future scenarios.

This all seems black and white, right? Thirty days have passed, so the case is final. But a future case will undoubtedly emerge with slightly different facts where the gray returns. Why we exist.