King, Richard v. Big Binder Express, LLC ( 2016 )


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  •             TENNESSEE BUREAU OF WORKERS’ COMPENSATION
    WORKERS’ COMPENSATION APPEALS BOARD
    Richard King                                 ) Docket No. 2016-07-0378
    )
    v.                                           ) State File No. 35498-2015
    )
    Big Binder Express, LLC, et al.              )
    )
    )
    Appeal from the Court of Workers’            )
    Compensation Claims                          )
    Allen Phillips, Judge                        )
    Reversed and Remanded - Filed December 7, 2016
    The employee in this interlocutory appeal suffered work-related injuries to his head, face,
    and vision when a crank handle struck him in the face. The employer accepted the claim
    as compensable and provided medical and temporary disability benefits. The employee’s
    authorized ophthalmologist assigned a permanent impairment rating to the employee’s
    vision but indicated that it was “skewed” because underlying test results were “unreliable
    and inconsistent.” Thereafter, the employer sought a medical examination of the
    employee pursuant to Tennessee Code Annotated section 50-6-204(d)(1). The trial court
    ruled that the employer’s request to have the employee examined was unreasonable
    because the employee’s ophthalmologist was an authorized physician and the employer
    was merely seeking another impairment rating. Accordingly, the trial court refused to
    order the employee to submit to the examination. The employer has appealed. We
    reverse the trial court’s decision and remand the case.
    Presiding Judge Marshall L. Davidson, III, delivered the opinion of the Appeals Board in
    which Judge David F. Hensley and Judge Timothy W. Conner joined.
    Michael W. Jones, Nashville, Tennessee, for the employer-appellant, Big Binder Express,
    LLC
    Jay DeGroot, Jackson, Tennessee, for the employee-appellee, Richard King
    1
    Factual and Procedural Background
    On March 24, 2015, Richard King (“Employee”), a truck driver, suffered injuries
    arising out of and occurring in the course and scope of his employment with Big Binder
    Express, LLC (“Employer”). On that date, a crank handle, described in the record as a
    steel pipe with a handle on the end, struck him in the face with “extreme force” and
    knocked him unconscious for several minutes. Among other problems, Employee
    suffered a broken nose, headaches, memory loss, and blurred vision. Employer accepted
    the claim as compensable and provided medical and temporary disability benefits.
    Employee was treated by an optometrist, an ENT, a neurologist, and an
    ophthalmologist. As pertinent to this appeal, Employee’s authorized ophthalmologist,
    Dr. Jason Sullivan, assigned a permanent impairment rating of 34% to Employee’s vision
    and placed him at maximum medical recovery. However, Dr. Sullivan wrote on the
    impairment evaluation form next to his impairment rating that “these results are skewed
    because of the unreliable and inconsistent results of the peripheral vision testing.”
    Employee was also examined by Dr. Samuel Chung, a neurologist, for the purpose
    of providing an impairment rating for various conditions associated with Employee’s
    head injuries. Dr. Chung, who evaluated Employee at his request, provided impairment
    ratings totaling 13% to the body as a whole, but he did not provide an impairment rating
    for Employee’s vision. Dr. Chung stated he would “defer the specific impairment rating
    for the eyes to the ophthalmologist,” Dr. Sullivan.
    Thereafter, Employer sought an opinion regarding the impairment to Employee’s
    vision from the Medical Impairment Rating Registry (“MIRR Program”).1 Employee
    objected and, because there were no competing ratings pertaining to Employee’s vision
    impairment, the MIRR Program declined to perform an evaluation. Employer then
    scheduled a medical examination regarding Employee’s vision pursuant to Tennessee
    Code Annotated section 50-6-204(d)(1). Employee refused to attend the appointment,
    prompting Employer to file a petition for benefit determination.
    The trial court concluded that Employer’s            request to have Employee examined
    was unreasonable because Dr. Sullivan was an                authorized physician and Employer
    merely sought another medical impairment rating.            The trial court explained that it could
    find “nothing reasonable about requesting another           opinion when [Employer’s] approved
    1
    The MIRR Program may be invoked when “a dispute as to the degree of medical impairment exists” and
    establishes a mechanism for a neutral physician to evaluate the injured worker and assess an impairment
    rating, which is presumed accurate, although that presumption can be rebutted by clear and convincing
    evidence. Tenn. Code Ann. § 50-6-204(d)(5) (2015). Such a dispute exists when, among other things,
    “[a]t least two different physicians have issued differing permanent medical impairment ratings . . . and
    the parties disagree as to those impairment ratings.” Tenn. Comp. R. & Regs. 0800-02-20-.01(7) (2015).
    2
    physician performed the testing.” Accordingly, the trial court declined to order
    Employee to attend the examination Employer had scheduled. Employer has appealed.
    Standard of Review
    The standard we apply in reviewing a trial court’s decision is statutorily mandated
    and limited in scope. Specifically, “[t]here shall be a presumption that the findings and
    conclusions of the workers’ compensation judge are correct, unless the preponderance of
    the evidence is otherwise.” Tenn. Code Ann. § 50-6-239(c)(7) (2015). The trial court’s
    decision may be reversed or modified if the rights of a party “have been prejudiced
    because findings, inferences, conclusions, or decisions of a workers’ compensation judge:
    (A)    Violate constitutional or statutory provisions;
    (B)    Exceed the statutory authority of the workers’ compensation judge;
    (C)    Do not comply with lawful procedure;
    (D)    Are arbitrary, capricious, characterized by abuse of discretion, or
    clearly an unwarranted exercise of discretion; or
    (E)    Are not supported by evidence that is both substantial and material
    in the light of the entire record.”
    Tenn. Code Ann. § 50-6-217(a)(3) (2015).
    A trial court’s decision to grant or deny an employer’s request for a medical
    examination pursuant to Tennessee Code Annotated section 50-6-204(d)(1) is reviewed
    on appeal under an abuse of discretion standard. Overstreet v. TRW Commer. Steering
    Div., 
    256 S.W.3d 626
    , 639 (Tenn. 2008). This standard prohibits an appellate court from
    substituting its judgment for that of the trial court, and the appellate court will find an
    abuse of discretion only if the trial court “applied incorrect legal standards, reached an
    illogical conclusion, based its decision on a clearly erroneous assessment of the evidence,
    or employ[ed] reasoning that causes an injustice to the complaining party.” Wright ex
    rel. Wright v. Wright, 
    337 S.W.3d 166
    , 176 (Tenn. 2011). That said, discretionary
    decisions “require a conscientious judgment, consistent with the facts, that takes into
    account the applicable law.” White v. Beeks, 
    469 S.W.3d 517
    , 527 (Tenn. 2015).
    Analysis
    A.
    The sole issue on appeal is whether the trial court erred in denying Employer’s
    request to have Employee examined pursuant to Tennessee Code Annotated section 50-6-
    204(d)(1). Employer contends that its request was reasonable given that the authorized
    treating ophthalmologist, Dr. Sullivan, made clear that his impairment rating was
    uncertain because it was based on unreliable test results. Employee responds that
    3
    Employer seeks only to obtain a lower impairment rating and, therefore, Employer’s
    request is per se unreasonable. For the reasons that follow, we find that Employer is
    entitled to the requested medical examination.
    The pertinent statute, section 50-6-204(d)(1), provides that the “injured employee
    must submit to examination by the employer’s physician at all reasonable times if
    requested to do so by the employer.” (Emphasis added.) Moreover, when a party’s
    physical or mental condition is at issue, “the court in which the action is pending may
    order the party to submit to a physical or mental examination by a suitably licensed or
    certified examiner . . . upon motion for good cause shown . . . .” Tenn. R. Civ. P. 35.01.2
    An employer’s right to have an employee examined by a physician of its choice
    has been a frequently disputed issue in workers’ compensation cases for decades. As far
    back as 1947, for example, the Tennessee Supreme Court addressed the issue when an
    employer requested an employee be required to attend an examination on the theory that
    the employee’s problems were due to syphilis rather than a work-related back injury.
    Trent v. American Serv. Co., 
    206 S.W.2d 301
    (Tenn. 1947). The trial court ruled the
    employer was entitled to the examination, which would involve the extraction of spinal
    fluid.
    Id. at 302.
    The Supreme Court affirmed, finding withdrawing spinal fluid to be
    akin to drawing blood and that the requested examination was “entirely reasonable.”
    Id. at 304.
    In reaching that conclusion, the Supreme Court observed that the statute allowing
    an employer to request a medical examination, now section 50-6-204(d)(1), was designed
    to provide “the employer a fair means of ascertaining if and when the employee has
    entirely recovered from the injury for which the employer is paying compensation or of
    ascertaining whether the ailments from which the employee suffers at some period
    subsequent to the injury is [sic] due to that injury or to some other cause not connected
    with his or her employment.”
    Id. at 303.
    Years later, in Stubblefield v. Hot Mix Paving Co., 
    383 S.W.2d 44
    (Tenn. 1964),
    the Supreme Court affirmed a trial court’s order requiring an injured worker to attend an
    examination that necessitated travelling some distance. The Court held that
    [t]he employer has a right to have the employee examined by a doctor or a
    physician of [the employer’s] choosing so long as [the employer] . . . pays
    the expense of the employee . . . for the very obvious reason of having [the
    employer’s] own physician determine whether or not he thinks the
    employee is injured as he claims. This then provides the evidence pro and
    con on behalf of the employee and employer for the trier of facts to weigh
    and reach his determination.
    2
    “[T]he Tennessee Rules of Civil Procedure shall govern proceedings at all hearings before a workers’
    compensation judge unless an alternate procedural or evidentiary rule has been adopted by the
    administrator.” Tenn. Code Ann. § 50-6-239(c)(1) (2015); Syph v. Choice Food Grp., Inc., No. 2015-06-
    0288, 2016 TN Wrk. Comp. App. Bd. LEXIS 18 (Tenn. Workers’ Comp. App. Bd. Apr. 21, 2016).
    4
    Id. at 47.
    Thus, the rule has developed that “physical examinations requested pursuant to
    Tennessee Code Annotated section 50-6-204(d)(1) generally should be granted.” Perry
    v. Gap, Inc., No. M2004-02525-WC-R3-CV, 2006 Tenn. LEXIS 448, at *7 (Tenn.
    Workers’ Comp. Panel May 31, 2006).
    However, an employer’s right to an examination of an employee pursuant to
    section 50-6-204(d)(1) by a physician of the employer’s choosing is not without limits.
    In particular, both by statute and case law, the employer’s request must be reasonable. In
    Overstreet3 for example, the employer, citing section 50-6-204(d)(1) and Tennessee Rule
    of Civil Procedure 35.01, argued that the trial court erred in refusing to grant its request
    for an examination of an employee. The Tennessee Supreme Court agreed, holding that
    an employer is entitled to an examination by a physician of its choosing “so long as the
    request is reasonable.”
    Id. The Court explained
    that
    an employer has a statutory right to compel an injured employee to undergo
    a medical evaluation by a physician of the employer’s choosing. The
    employee may challenge the request as unreasonable in light of the
    circumstances. If the trial court determines the request is reasonable, the
    employee must submit to a medical evaluation conducted by the physician
    of the employer’s choice. Any failure on the part of the employee to
    comply with such an order may result in a dismissal of the workers’
    compensation claim. If the employer’s request is unreasonable, the trial
    court should deny the request, but must specifically state its reasons in the
    record.
    Id. at 639
    (citations omitted).
    To assist trial courts in determining whether an employer’s request is reasonable,
    the Supreme Court has indicated courts should be mindful of whether the proposed
    examination will subject the worker to “appreciable pain or suffering or danger to life or
    health.”
    Id. at 637.
    In addition, the Court has observed that its decisions regarding
    employer-requested examinations “should not be interpreted to stand for the proposition
    that a reasonable request by an employer for a medical evaluation of the employee is
    satisfied by an evaluation conducted by the employee’s treating physician.”
    Id. at 639
    .
    In short, the only limitations placed on the employer’s right to require the
    employee to submit to an examination by a physician of the employer’s choosing is that
    the employer’s request be made at a “reasonable time[],” Tenn. Code Ann. § 50-6-
    204(d)(1), and “be reasonable, as a whole, in light of the surrounding circumstances,”
    3
    Overstreet affirmed the principle established in Trent that an employer is entitled to have an employee
    examined if reasonably necessary to evaluate a claim, but has been abrogated on other grounds. See
    Hayes v. Am. Zurich Ins. Co., No. E2010-00099-WC-R3-WC, 2011 Tenn. LEXIS 458, at *16 n.3 (Tenn.
    Workers’ Comp. Panel May 25, 2011).
    5
    
    Overstreet, 256 S.W.3d at 637
    n.4. Subject to these limitations, “if an employer’s request
    for such an examination is reasonable, . . . the trial court is obligated to grant it.” Irons v.
    K & K Trucking, Inc., No. M2010-01280-WC-R3-WC, 2011 Tenn. LEXIS 614, at *9
    (Tenn. Workers’ Comp. Panel July 14, 2011). Reasonableness in “each case must be
    determined upon all the particular facts of that particular case.” 
    Trent, 206 S.W.2d at 304
    .
    B.
    Guided by the foregoing principles, we turn to the circumstances of this case. The
    trial court found Employer’s request was unreasonable because the physician who
    assigned the impairment rating to Employee’s vision, Dr. Sullivan, was an authorized
    treating physician. While Dr. Sullivan’s status as an authorized physician may be a factor
    to consider in determining whether the request for an examination is reasonable, it is not
    the sole determinative factor.4 In Overstreet, as here, the employee’s treating physician
    was authorized by the employer. However, the Supreme Court in Overstreet observed
    that a request for an employer’s medical examination is not satisfied merely because the
    employee was examined by his or her authorized physician.
    Id. at 639
    . Implicit in the
    Court’s observation is the conclusion that an authorized physician is not the functional
    equivalent of a physician of the employer’s choosing for purposes of section 50-6-
    204(d)(1).5
    Moreover, if we were to accept Employee’s position that an employer’s
    examination request made pursuant to section 50-6-204(d)(1) is per se improper when the
    disputed opinion comes from an authorized physician, the reasonableness standard
    embodied in the statute and applied by the courts would be reduced to a single
    consideration. This we decline to do. Instead, all relevant circumstances should be taken
    into account when assessing the reasonableness of a request made pursuant to section 50-
    6-204(d)(1). As stated by the Supreme Court, reasonableness in “each case must be
    determined upon all the particular facts of that particular case.” 
    Trent, 206 S.W.2d at 304
    . Thus, the reasonableness of an employer’s request must be examined in light of all
    the surrounding circumstances, and when an employer has sufficient reason to question
    the opinion of an authorized physician, it may do so by seeking an examination as
    authorized by section 50-6-204(d)(1). Here, there is no dispute that Dr. Sullivan
    4
    See generally Cross v. Norrod Builders, Inc., No. M2005-00743-WC-R3-CV, 2006 Tenn. LEXIS 855,
    at *9 (Tenn. Workers’ Comp. Panel Apr. 11, 2006) (In the context of a conflict between a physician and
    an adjuster that had been caused by the adjuster’s interference with the employee’s treatment and
    insistence that the employee be placed at maximum medical improvement, the Panel observed that “[t]he
    statute does not require repeated examinations be conducted because the employer is displeased with the
    results,” particularly when the employer or its agent caused those results.).
    5
    Although an employer is responsible for composing the panel of physicians, the selection of the
    authorized physician ultimately rests with the employee. Tenn. Code Ann. § 50-6-204(a)(3)(A)(i) (2015).
    6
    significantly undermined the impairment rating he gave, which was the only impairment
    rating for Employee’s vision, characterizing it as “skewed” because the underlying test
    results were “unreliable.”
    The trial court also explained that Employer “seeks only another impairment
    rating.” Assuming for the sake of analysis that such a rationale would be an insufficient
    basis to request an examination under section 50-6-204(d)(1), Employer’s position as
    reflected in its papers filed in the trial court and at the expedited hearing contradicts the
    trial court’s characterization of Employer’s request. While acknowledging that Dr.
    Sullivan’s impairment rating of 34% was high, the crux of Employer’s position was that
    Dr. Sullivan’s opinion was “skewed because of the unreliable and inconsistent results of
    the peripheral vision testing.” Employer made no argument that the rating was too high
    or too low, with Employer’s counsel observing:
    I don’t know what the rating should be. All I know is that the basis of the
    rating that [Dr. Sullivan] has provided states that [it’s] based on unreliable
    tests and that the results are skewed. At the end of the day, [Employee]
    may have exactly the same rating, but I believe it’s appropriate that we
    clarify that before we move forward.
    In addition, Employer’s counsel took the position that “there is in controversy the
    basis for testing, the visual testing basis for the visual medical impairment rating when
    the doctor’s report states that it’s skewed and unreliable. And that’s the basis for our
    request for an independent medical evaluation.” Furthermore, Employer’s counsel
    asserted that “[i]f the doctor had . . . just made a 34 percent body-as-a-whole impairment
    rating here, we wouldn’t be having this discussion.” Employer’s argument on appeal is
    consistent with these arguments made below, i.e., that Dr. Sullivan’s belief the
    impairment rating he provided was untrustworthy, coupled with Dr. Chung’s deferring to
    Dr. Sullivan to rate Employee’s visual system, results in an inability on the part of
    Employer to adequately evaluate Employee’s claim for permanent disability benefits.
    In our view, the evidence preponderates in favor of a finding that Employer’s
    request was reasonable. If the visual testing results are unreliable, so is the rating, a point
    Dr. Sullivan clearly recognized. The record contains nothing to the contrary.
    Consequently, Employer is entitled to the requested medical examination of Employee as
    authorized by section 50-6-204(d)(1).6
    6
    We also note that Employer first attempted to obtain a reliable impairment rating by utilizing the MIRR
    Program, which would have permitted Employee to participate in choosing the physician to render the
    impairment rating. Because the physician performing an evaluation within the confines of the MIRR
    Program is not hired by either party, Employer’s attempt to obtain an impairment rating in this manner
    supports its contention that it is seeking an accurate rating rather than merely a lower rating as Employee
    asserts.
    7
    Before concluding, we note that in denying Employer’s request, the trial court
    relied upon Long v. Tri-Con Industries, 
    996 S.W.2d 173
    (Tenn. 1999). In Long, the
    employer’s request for a medical examination, made because “the impairment rating
    assigned by [the treating physician] was ‘significantly higher than anticipated,’” was
    granted by the trial court but the court’s order specified which physician was to perform
    the examination.
    Id. at 178-79.
    The Supreme Court’s analysis of the issue focused on
    whether the trial court erred in specifying the physician to perform the examination, not
    whether granting the employer’s request for an examination was proper. Thus, Long is
    not helpful in resolving the present case.
    The trial court also relied on Perry v. Gap, Inc., No. M2004-02525-WC-R3-CV,
    2006 Tenn. LEXIS 448 (Tenn. Workers’ Comp. Panel May 31, 2006), which is likewise
    distinguishable. In Perry, the Special Workers’ Compensation Appeals Panel agreed
    with the trial court’s conclusion that the employer was not entitled to an examination
    because the employee had already been “seen by another of [the employer’s] doctors and
    [the court] will not require her to go to yet another doctor.”
    Id. at *6.
    However, in
    affirming the trial court’s denial, the Panel observed that the physicians involved in the
    care of the employee had provided testimony that was “sufficient to fulfill the statutory
    requirements in Tennessee Code Annotated section 50-6-204(d)(1).”
    Id. at *7-8.
    Such is
    not the case here, as the only medical impairment rating in the record regarding
    Employee’s vision has been deemed unreliable by the very physician who provided that
    rating. Accordingly, Employer’s request in the present case is “entirely reasonable.”
    
    Trent, 206 S.W.2d at 304
    .
    Conclusion
    For the foregoing reasons, we hold that the trial court abused its discretion in
    denying Employer’s request for a medical examination of Employee as authorized by
    section 50-6-204(d)(1). Accordingly, the trial court’s decision is reversed and the case
    remanded.
    8
    TENNESSEE BUREAU OF WORKERS’ COMPENSATION
    WORKERS’ COMPENSATION APPEALS BOARD
    Richard King                                               )   Docket No.   2016-07-0378
    )
    v.                                                         )   State File No. 35498-2015
    )
    Big Binder Express, LLC, et al.                            )
    CERTIFICATE OF SERVICE
    I hereby certify that a true and correct copy of the Appeals Board’s decision in the
    referenced case was sent to the following recipients by the following methods of service
    on this the 7th day of December, 2016.
    Name                      Certified   First Class   Via   Fax      Via     Email Address
    Mail        Mail          Fax   Number   Email
    Jay DeGroot                                                          X     jdegroot@garretylaw.com
    ghayes@garretylaw.com
    Michael W. Jones                                                     X     mjones@wimberlylawson.com
    jbartell@wimberlylawson.com
    Allen Phillips, Judge                                                X     Via Electronic Mail
    Kenneth M. Switzer,                                                  X     Via Electronic Mail
    Chief Judge
    Penny Shrum, Clerk,                                                  X     Penny.Patterson-Shrum@tn.gov
    Court of Workers’
    Compensation Claims
    Jeanette Baird
    Deputy Clerk, Workers’ Compensation Appeals Board
    220 French Landing Dr., Ste. 1-B
    Nashville, TN 37243
    Telephone: 615-253-1606
    Electronic Mail: Jeanette.Baird@tn.gov
    

Document Info

Docket Number: 2016-07-0378

Judges: Marshall L. Davidson III, David F. Hensley, Timothy W. Conner

Filed Date: 12/7/2016

Precedential Status: Precedential

Modified Date: 1/10/2021