The Tennessee Workers’ Board handed down several cases last month that expound upon and demonstrate the strength of the presumption regarding causation afforded to authorized treating physicians, pursuant to Tenn. Code Ann. § 50-6-102(14(E). Specifically, this statute provides, “[t]he opinion of the treating physician, selected by the employee from the employer’s designated panel of physicians pursuant to § 50-6-204(a)(3), shall be presumed correct on the issue of causation but this presumption shall be rebuttable by a preponderance of the evidence.”
In the case of Jamal Darraj v. McKee Foods Corporation, filed on January 17, 2017, the employee selected Dr. Marshall Jemison from a panel of physicians, which then afforded him the presumption of correctness with regard to causation. Dr. Jemison opined that the employee’s conditions did not primarily arise out of the employee’s employment. The employee then sought the opinion of Dr. Joseph Burton, a forensic pathologist, who opined that the alleged injury was easily related to the employee’s job. The employee also sought treatment from an orthopedic surgeon, Dr. Edward Hollinger, who also opined that the alleged injuries were work-related and were greater than 50 percent attributable to his employment. However, the trial court held that the employee did not present sufficient evidence to rebut the presumption of correctness of Dr. Jemison’s causation opinion, and the Appeals Board affirmed the trial court’s decision.
In Ashley Patton v. General Motors, also filed on January 17, 2017, the Appeals Board affirmed the trial court’s holding that a nurse or physician’s assistant is not qualified to render an expert medical opinion with respect to causation. In Patton, the only medical proof the employee presented was the opinion of a physician’s assistant, so technically the presumption given to the authorized treating physician was not at issue. It is clear from this case that expert medical opinions regarding causation must come from physicians, rather than physician’s assistants or nurses.
In James Green v Kellogg Companies, filed January 19, 2017, the employee selected Dr. Lloyd Robinson from a panel of physicians provided to him. Dr. Robinson opined that Mr. Green’s underlying arthritis was the primary cause of his symptoms and that it was not a work-related condition. Dr. Robinson continued to opine that Mr. Green’s employment contributed less than 50 percent to his pain complaints and that the underlying pre-existing arthritis was the primary cause of his symptoms. At trial, Mr. Green entered the C-32 Medical Report of Samuel Chung, D.O., into evidence. Dr. Chung marked that Mr. Green’s injury “more probably than not” arose from his work. The Court found that Mr. Green chose Dr. Robinson from a proper panel and further held that Dr. Robinson’s opinion is entitled to a presumption of correctness pursuant to Tennessee Code Annotated section 50-6-102(14)(E) (2016). The trial court held that Dr. Chung’s C-32 was not sufficient to overcome Dr. Robinson’s opinion regarding causation, and the Court noted that one of the reasons was because Dr. Chung is a Doctor of Osteopathic Medicine (D.O.), rather than a Doctor of Medicine (M.D.).
These cases are just three of many that are filed by the Appeals Board demonstrating the strength of the presumption of correctness provided to the authorized treating physician chosen from the panel of physicians. The presumption can be rebutted by a preponderance of the evidence, but in order to overcome this presumption, the employee is required to present strong medical evidence from a physician who opines that the employment contributed more than 50 percent in causing the death, disablement, or need for medical treatment for the alleged injury, considering all causes. Even when the employee presents multiple favorable causation opinions, it may not be sufficient to overcome the statutory presumption of correctness of the physician chosen from the panel.
Jared S. Renfroe is an attorney for Spicer Rudstrom PLLC. He focuses his legal practice on litigation throughout Tennessee. His concentrates primarily in premises liability, business and commercial representation, employment practices litigation, professional liability, insurance defense and workers’ compensation.