In the recent decision by the Tennessee Supreme Court, Special Workers’ Compensation Appeals Panel, Williams v. Ajax Turner Co., Tenn. LEXIS 204 (Apr. 12, 2017), Jeffery G. Foster and Benjamin J. Conley, attorneys with Morgan & Akins, PLLC, successfully argued an employer has the right to obtain an evaluation with a medical impairment registry (“MIR”) physician based on conflicting impairment ratings assigned by the employee’s treating physician and the employer’s independent physician. The attorneys also succeeded in having the Supreme Court Panel overturn the lower court’s finding that the authorized physician rebutted the MIR physician’s impairment rating by clear and convincing evidence and, in so doing, reaffirm the standard for rebutting the statutory presumption of correctness afforded MIR physicians.
On August 2, 2012, an employee sustained a compensable injury when a co-worker ran over his left foot. After receiving temporary disability and medical benefits from his employer, the employee was assigned 20% permanent anatomical impairment to his left leg by his treating physician. In response, the employer sought a second opinion. As a result of a medical records review, the employer’s physician opined the employee sustained 5% impairment to his left leg. In light of the conflicting opinions, the employer requested an evaluation through the medical impairment registry (“MIR”) program. Based on her examination of the employee and review of his medical records, the MIR physician assigned 5% permanent impairment to his left leg.
However, the trial court found the employee had rebutted by clear and convincing evidence the presumption of correctness statutorily attached to the MIR physician’s rating, applied a multiplier of four to the 20% rating, and awarded the employee 80% permanent partial disability (“PPD”) to the left leg. The employer appealed, contending the trial court erred in finding the employee had rebutted the MIR physician’s impairment rating by clear and convincing evidence and in applying a multiplier of four. Alternatively, the employee argued the trial court erred in even considering the MIR physician’s opinion. The appeal was referred to the Special Workers’ Compensation Appeals Panel pursuant to Tennessee Supreme Court Rule 51.
The Supreme Court Panel first addressed whether the employer had the right to seek an MIR evaluation based on the conflicting opinions of the treating physician and the employer’s physician. The employee argued an employer does not have the right to “manufacture” controversy by obtaining a second opinion to address the employee’s impairment rating and then using the second opinion to obtain an MIRR evaluation. In contrast, the employer argued either party is permitted to request an MIR evaluation “[w]hen a dispute as to the degree of medical impairment exists.” Tenn. Code Ann. § 50-6-204(d)(5). The employer also argued “[d]ispute of degree of medical impairment,” includes when “[a]t least two different physicians have issued differing permanent medical impairment ratings in compliance with the Act and the parties disagree as to those permanent impairment ratings.” Tenn. Comp. R. & Regs. 0800-02-20-.01(7). In siding with the employer, the Special Workers’ Compensation Panel found “no support” for the employee’s position and stated the trial court did not err in considering the MIR evaluation.
The Supreme Court Panel next addressed whether the employee successfully rebutted the MIR physician’s testimony by clear and convincing evidence. The Court noted “clear and convincing evidence” requires creating “serious and substantial doubt” about the MIR evaluation’s correctness, and is not proved by simply showing a disagreement between medical experts concerning the proper diagnosis. The Court also noted proving a “serious and substantial doubt” may require affirmative evidence the MIR physician “used an incorrect method or an inappropriate interpretation of the [AMA Guides].” In regards to the medical evidence submitted at trial, the authorized physician admitted the injuries for which he assigned impairment could have healed by the time the MIR physician evaluated the employee, which the Court found “[a]t best” equates to a disagreement concerning diagnosis. Further, the authorized physician admitted the AMA Guides prefer the diagnosis-based method to assign impairment, but he used the range-of-motion method because he did not like the results from the diagnosis method. As such, the Supreme Court Panel ruled the authorized physician’s testimony failed to raise a “serious or substantial” doubt about the accuracy of the MIR physician’s rating, which is required to overcome the statutory presumption of correctness.
Although the Supreme Court Panel upheld the trial court’s award of a four multiplier, it overruled the trial court’s finding that the authorized physician’s 20% impairment rating applied. Instead, the Appeals Court applied the MIR physician’s 5% lower extremity rating, substantially reducing the total impairment from 80% to 20% to the left leg.