By Jared S. Renfroe

Terry Lamm v. E. Miller Construction, Inc., et al.  

Docket No. 2015-01-0429

State File No. 64870-2015

Filed November 8, 2016

Summary

This case was before the Appeals Board on appeal from the employer, and the issue was whether a panel of physicians was required when the urgent care clinic that the employer sent the employee to released the employee to maximum medical improvement (MMI). The Appeals Board affirmed the trial court’s holding that the employee was entitled to a panel of physicians.

Facts

The employee asserted a back injury that occurred while he was working for the employer, and the employer sent him to an urgent care clinic.  After being treated for a few visits, he was released to MMI, while it was noted that his MRI showed nothing acute. It was therefore determined that his symptoms were due to preexisting degenerative changes. The employee requested additional medical treatment with another physician and requested a panel of physicians. The employer refused to provide a panel, so the employee filed a Petition for Benefit Determination seeking additional medical benefits. However, he did not check the box on the Dispute Certification Notice indicating that whether a proper panel was given is an issue. At the expedited hearing, the trial court held the issue was appropriately at issue and held that the employee was entitled to a panel of physicians. The trial court further determined that while the employee had not presented an expert medical opinion sufficient to establish that he would likely prevail at trial in proving his injury arose primarily out of and in the course and scope of his employment, he had presented enough evidence to establish that he would likely prevail in showing he experienced back pain performing assigned work duties. The employer appealed.

Holding

The Appeals Court affirmed the trial court’s holdings. First, it held that the issue of whether a panel needed to be provided was appropriate for the expedited hearing, even though the box for this issue was not checked on the Dispute Certification Notice. It is necessary to consider the document as a whole without reading the checklist of issues in a vacuum. Because the request for an expedited hearing stated that the reason an evidentiary hearing was necessary was due to the employee being in need of a panel of physicians but was not provided one.  Additionally, the Appeals Board relied on McCord, stating that under the particular circumstances presented at this stage of proceedings, the preponderance of the evidence supports the trial court’s determination that the employee was entitled to a panel of physicians. Moreover, the employer’s argument that the physician at the urgent care clinic was the authorized physician failed because the explicit language of the amended Workers’ Compensation Act emphasizes the importance of providing a panel of three physicians from which the injured worker can select.

 

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.

 

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