By Chief Judge Kenneth M. Switzer

Remember the phrase, “I’m not a doctor, but I play one on TV”?

Google explains that it “originated from a 1984 Vicks Formula 44 cough syrup commercial” and “humorously highlights the distinction between real expertise and the appearance of expertise on television.”

Real expertise. Lawyers and judges are experts in the law; same for doctors in medicine. Mostly we’re smart, but we definitely don’t know everything. Generally speaking, it’s a wise idea to stay in our lanes.

Appellate courts in workers’ compensation have emphasized this in varying contexts.

The full Tennessee Supreme Court recently frowned on doctors as judges in Edwards v. Peoplease. They wrote that the doctors’ “conclusions that [the employee’s] injury was not compensable should have been disregarded” because “these are legal conclusions that the doctors were not permitted to make. … [D]rawing legal conclusions from facts is a judicial function[.]”

On the flipside, in Lurz v. International Paper Co., the Appeals Board wrote, “[J]udges are not well suited to make independent medical determinations without expert medical testimony supporting such a determination. Likewise, parties and their lawyers cannot rely solely on their own medical interpretations of the evidence to successfully support their arguments.”

Where am I going with this?

Well, as workers’ compensation judges, one of our many functions is to approve proposed settlements under section 50-6-240.

Parties wishing to close medical benefits often offer proof—projected costs—to show that the sum being paid to the injured worker is sufficient to meet that expense, whenever it’s incurred.

Settlement approvals aren’t trials. But we as judges nonetheless need persuasive, reliable, and impartial proof showing that in closing the right to future medical care, the employee is still “receiving, substantially, the benefits provided by this chapter.”

So, if you submit cost projections, we prefer they come from experts in that field. Another Google search shows that these experts abound, typically, their expertise is in disciplines other than law: medicine, finance, health-care administration, life-care planners, etc. Often, it depends on the type of injury.

Along these lines, we’re wary of proof prepared by lawyers or their coworkers (or for that matter the third-party administrator adjusting the case, or the employer themselves.) At first blush, this might save your client some money. But if the agreement isn’t approved, it’s probably cost your client more in attorney fees.

What about using hospital websites that estimate costs for procedures? Tempting, but is that information entirely useful for this purpose? It tells us what an appendectomy might cost today or tomorrow—but what about ten years from now? Moreover, a closer look at this particular website reveals that they publish this information because it’s required by law, not out of the goodness of their hearts. Also, it contains disclaimers like, “An ‘apples-to-apples’ comparison of costs between hospitals can be challenging. Many things influence pricing[.]”

Respectfully, when you gather this data, do you have the requisite medical and financial expertise to make an accurate and good-faith representation? I know they didn’t teach that at my law school. Instead, they taught the rule against perpetuities (and I still don’t really understand it).

So, you use in-house personnel? They might be better qualified. But is that information unbiased? Whoever prepared it is paid by the same entity paying you.

Also, here’s an unintended consequence with these practices: they might constitute a violation of the Rules of Professional Conduct. The Preamble outlines the many functions of a lawyer: a representative of clients, advisor, advocate, negotiator, evaluator, and potentially even third-party neutral. But one role you can’t be is a witness. Rule 3.7(a) states, “A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness[.]” Arguably, when you or your coworker prepare cost projections, you’re becoming a witness in the case.

We judges take seriously our responsibility to approve settlements that secure the employee substantially the benefits provided in the statute or are in their best interest.

The Appeals Board reinforced that this statutory responsibility rests solely on judges, holding in Torres v. Allvan Corp., “The statute places the responsibility for determining whether the settlement is in the best interest of the employee squarely on the shoulders of the trial judge, not the parties or the parties’ lawyers.”

In a footnote, the Board called that responsibility part of the “procedural safeguards established by the General Assembly” with which “[o]ur Supreme Court has previously emphasized the importance of compliance.”

And for anyone who believes that what the employee wants is what the judge should approve or that the judge need only determine if the employee understands the risks of relinquishing their rights and benefits, the Board warned those perspectives “directly contradict express statutory language.” (Emphasis added).

We take this responsibility seriously. So please, consider the quality of the documentation you’re offering as cost projections—and who prepared it— when proposing this type of settlement.

Of course, every judge on our Court will consider the unique circumstances of every case and exercise discretion. This article isn’t intended to serve as a black-letter prohibition on this type of proof. We “speak through our orders.”

And our actions. We typically enjoy approving settlements, because the parties are often grateful for some closure and for being heard, even if it’s a two-minute court appearance. We don’t like taking proposed settlements under advisement. We see disappointment and/or frustration.

But, we’re just being judges, weighing proof and applying a law that requires injured workers to receive “substantially, the benefits provided” by law or a settlement that is in their best interests. Not playing doctors on TV.

About that commercial, it’s humorous because it alludes to a simple but ludicrous truth. By playing an expert immersed in a particular field, you start to think you are one. 

Yet we should all remember to stay in our own lanes. Calculating a cost projection in a complicated case requires the right kind of expert. Doctors aren’t lawyers, and lawyers aren’t doctors—or health-care administrators.

Because, as the commercial highlights, the difference between real expertise and the appearance of expertise – is, well, real.

Experts at eating grass.