By Sarah Byrne, staff attorney, Nashville

Obtaining temporary disability benefits after maximum recovery is rarely ever “par for the course.”  

In Patrick v. Topgolf, the Appeals Board recently reinforced the general rule that temporary disability ends at maximum recovery or an employee’s ability to return to work. Any exception requires a doctor’s opinion—even with a lower standard of proof at an expedited hearing. 

“[T]he employee must present evidence,” wrote the Board, “from either the original authorized physician or another medical expert stating that the previous MMI determination was premature and/or should be retracted.”

The course of treatment

Ms. Patrick’s first authorized physician surgically repaired her meniscal tear. Because of continued symptoms, he briefly delayed placing her at maximum medical improvement. But when additional conservative treatment still didn’t help, he dismissed her symptoms as “out of proportion or beyond expectations.” He then rated and released her without restrictions, writing, “Any deficits for work will simply be her choice.”

After her release, she sought treatment on her own with a doctor who recommended another surgery and related its necessity to her work injury, but who didn’t weigh in on maximum recovery. She then had an employer’s examination with a doctor who noted “no recurrent pathology” on her MRI and who recommended more conservative treatment and that she see her authorized doctor.

When her authorized doctor refused to see her though, she chose a new one from a panel. He restricted her work and recommended a revision knee arthroscopy “as a last option” to treat her work injury.

Topgolf agreed to the surgery but declined to pay temporary disability because of maximum recovery. Ms. Patrick requested an expedited hearing.

A surgical recommendation, even with lay testimony, is no hole-in-one

The trial court found Ms. Patrick credible about her continuing symptoms after maximum recovery, including an inability to walk unsupported for longer than five minutes and swelling in her knee.

“She did not appear to exaggerate her complaints of pain;” observed the trial court. “Her demeanor was consistent with one who had endured pain for some time; and her need for relief was believable.”

Given her credible testimony and a surgery recommendation from her new authorized physician, the trial court concluded Ms. Patrick would likely prevail in proving her first authorized physician prematurely assessed maximum recovery. “[T]he underlying premise,” wrote the trial court, “that Ms. Patrick reached maximum medical improvement has now proven to be premature and incorrect, as suggested by the need for a second surgery.”

She was awarded temporary disability, since Topgolf wasn’t accommodating her restrictions.

Yet, without a medical opinion, it’s a bogey

The Board reversed, calling the evidence that she was not at maximum recovery “purely circumstantial.”  

“Injured workers who are treated and placed at MMI will often need additional treatment caused primarily by the work injury,” observed the Board. “The fact that additional treatment is medically necessary does not, standing alone, negate a prior determination of MMI.” 

Also, Ms. Patrick’s evidence fell short on expert testimony when compared to the cases cited as her support.   

In Wise v. Murfreesboro Health Care Center, the Board wrote, “the Appeals Panel relied on expert medical testimony supporting a second period of temporary disability[.]”

Similarly, in Laymance v. K-VA-T Food Stores, Inc., the authorized physician specifically rescinded his determination of maximum recovery in a questionnaire response.

Making it a birdie instead

This ruling echoes an earlier Appeals Board opinion from March in Gandy v. Marten Transport, Ltd. In that case, the trial court erred by presuming that an employee couldn’t work while hospitalized.

“A court’s presumption,” wrote the Board in Gandy, “no matter how reasonable it may seem, is not an appropriate basis for awarding temporary total disability if no medical proof in the record exists as to the duration or extent of the employee’s temporary disability.”

So, for those advocating for or against temporary disability after maximum recovery, the takeaway seems clear: an admissible, direct statement from a doctor is required. Obviously, the statement’s type (deposition, form C-32, questionnaire) and its admissibility will depend on the type of hearing, admissibility requirements, and the statement’s timely filing.

But a few steps now will save some strokes later, and will up your game—of golf anyway.

Photo by Kim Weaver, paralegal, Knoxville.