Salem: Board Affirms Opinion on Cheap Necessity of Remedy| Employees Compensation Information

Of Jane Salem

Monday, August 16, 2021 | 0

The Tennessee Workers’ Compensation Appeals Board issued a statement on Aug. 6 confirming a trial decision that a proposed treatment is appropriate and necessary if the attending physicians who examined the injured worker recommended it.

Jane Salem

The employer’s reliance on a usage report stating that the employee was a “sub-optimal candidate” for the operation approved by the medical directors of the office did not overcome the presumption of correctness associated with the reports of the treating physicians when the reports of the Based only on the reviews of the records.

The case concerned an employee who was being treated through open medical care and also raised a sensitive issue regarding the employee’s right to legal fees. A split appeal committee overturned the trial’s decision to deny the fees.

Facts

In Walls v United Technologies Corp. sustained Bob Wall’s work-related injuries to his hip. United Technologies has a treatment with Dr. Jeffrey Adams approved.

The parties have settled the lawsuit. The approved agreement stated that United Technologies would pay for appropriate, necessary, and work-related future medical treatment with Adams or a panel-selected physician.

Walls later returned to Adams. A magnetic resonance image showed a tear in the gluteus medius tendon, and Adams recommended surgery. United Technologies made the recommendation to its usage review provider, Dr. Reece Polesky.

Based on its report, the usage review provider concluded that “the clinical findings do not appear to support the medical need for the recommended surgery”. Walls appealed the non-certification to the medical director of the office, who agreed to the non-certification.

Adams asked for a second opinion, and the parties agreed that Walls would have Dr. William Kurtz examining walls and checking the MRI films. He agreed to the proposed surgery and said he didn’t think Walls had hip osteoarthritis.

United Technologies then sent Kurtz’s surgical recommendation for a usage review. Polesky not certified, which has been challenged again. This time, both the Medical Director and the Deputy Medical Director agreed to the non-certification.

Walls requested United Technologies approval of the operation. After taking evidence, the district court issued the order.

The court found that the parties had agreed that Adams and Kurtz were licensed attending physicians, so their surgical recommendations were considered medically necessary under the Workers Compensation Act. United Technologies has not refuted this presumption.

The court also declined to award Walls legal fees on the grounds that United Technologies’ actions were “appropriate” and a “sanction” was inappropriate.

Both parties appealed.

The opinion

United Technologies argued that the Court of First Instance erred in finding that it had not rebutted the presumption of medical necessity applicable to the Adams and Kurtz recommendations.

The Board began its analysis with the purpose of reviewing usage: it “provides employers with a mechanism to assess the medical need for prescribed medical treatment”. The settlement agreement contained a provision for appropriate and necessary future medical services.

In a letter to the three-person jury, Presiding Judge Timothy Conner recalled: “In these circumstances, a court of first instance is not bound by the decision of the doctor or the bureau’s medical director but is mandated to conduct a de novo review to determine Whether the employer has rebutted the presumption that the prescribed medical treatment is reasonably necessary to treat the accident at work. “

The board wrote that Adams and Kurtz examined Walls many times and made their recommendations based on their clinical and diagnostic findings, while Polesky never examined him and drew his conclusions from a review of the records.

Also, the authorized doctors reviewed the MRI films and interpreted the images themselves, while Polesky only reviewed the radiology report, not the actual films.

The authorized doctors checked the MRI images and concluded that they did not have significant arthritis. With all of this in mind, the board agreed that Polesky’s opinions were less convincing.

It was also noteworthy that Polesky did not address the medical need directly. He had concluded that Walls’ “advanced osteoarthritis” made him a “suboptimal candidate for surgery.” Conner wrote, “Whether the employee is a ‘sub-optimal’ candidate for surgery was not the question that was put to the court and Dr. Polesky’s recommendation not to ‘certify’ the operation is at best an indication that Dr. Polesky believed in the recommended surgery to treat the occupational accident is not medically necessary. “

As for the medical directors’ letters, although they agreed to non-certification, they did not “express an independent opinion as to whether the recommended treatment was’ medically necessary ‘”.

The court of first instance also found credible testimony from Walls about his condition and limitations.

“Given the totality of expert and lay evidence, we come to the conclusion that the superiority of the evidence supports the decision of the court of first instance,” said the chamber.

However, the chamber split over the denial of legal fees.

Section 50-6-226 (d) (1) (B) states that a court may award fees and expenses if an employer “[w]wrongly disputes a claim or wrongly fails to initiate one of the services to which the employee is entitled in good time ”if the judge determines after a hearing that the services were owed.

Conner wrote: “Nothing in the law exempts an employer from the burden of proof or the consequences of their decision to refuse medical treatment simply for requesting a review of the use of the prescribed treatment and then relying on the reviewing doctor’s ‘decertification’ recommendation has left.”

He continued, “In circumstances where a court evaluates a claim for attorney’s fees and expenses under Section 226 (d) (1) (B), the employer must accept the consequences of its decision to refuse such treatment if it turns out to be “mistaken, inaccurate or otherwise inconsistent with the law or the facts”. If either of these consequences is that she can be sentenced to pay reasonable attorney’s fees and expenses, so be it. “

The board overturned this part of the order because it concluded that the court of first instance had incorrectly analyzed the fee issue under Section 226 (d) (1).

Judge David Hensley disagreed. He wrote: “The majority ignore the fact that the parties and the trial judge did not deal with section 50-6-226 (d) (1) (B) prior to this appeal, and ignore that the Appeals Chamber has not dealt with referred to the applicability of Section 50-6-226 (d) (1) (B) for a legal fee claim based on an employer failing to approve medical services provided for in a settlement agreement or court order. “

The board was referred back to the District Court to reconsider the issue of attorney fees. Since the contested decision was a compensation order, either party can appeal again either to the Appeals Committee or to a Special Committee on Employee Compensation of the Supreme Court.

Jane Salem is an attorney with the Tennessee Court of Workers’ Compensation Claims, Nashville. This entry is republished with permission from the court’s blog.