TN Appeals Panel Clarifies Presumption of Correctness Afforded to MIR Physician's Impairment Rating
Construing Tenn. Code Ann. § 50-6-204(d)(5), pursuant to which a presumption of correctness is afforded to the impairment rating provided by an independent medical evaluator who has been selected from the state's Medical Impairment Registry ("MIR"), a Special Workers' Compensation Appeals Panel of the Tennessee Supreme Court reversed, in relevant part, a finding by a trial court that had awarded an injured employee a permanent impairment rating of seven percent to the body as a whole [Rodgers v. Rent-A-Center East, Inc., 2020 Tenn. LEXIS 280 (July 29, 2020)]. Acknowledging that the statutory presumption could be rebutted by clear and convincing evidence to the contrary, the Appeals Panel stressed that a disagreement between medical expert witnesses as to the proper diagnosis of an employee's condition may not, in and of itself, constitute the sort of "clear and convincing evidence" needed to overcome the statutory presumption of accuracy afforded an MIR physician's impairment rating. As such, the MIR physician's rating of two percent should have been utilized in computing the benefits due to the injured employee.
Background
On May 7, 2013, the employee was rear-ended in an automobile accident while running work-related errands for his store manager. Immediately after the accident, the employee reported sharp pain in the lower back, radiating down his left leg. He was transported to a hospital, treated, and given an off-work release. The employee was eventually treated by Dr. Waggoner, an orthopedic surgeon, whom the employee chose from a physician panel provided by the employer. Dr. Waggoner eventually determined that the employee reached MMI on October 9, 2013, and assigned a zero percent permanent impairment rating and released him to return to work. The employer subsequently authorized a second opinion with Dr. Parsioon, a neurosurgeon. Dr. Parsioon also released the employee with no restrictions on October 8, 2015. Dr. Parsioon concurred that the employee had a zero percent impairment.
The employee subsequently sought treatment on his own, seeing two specialists. In May 2018, the employee obtained his own IME with Dr. Dalal, an orthopedic surgeon, who opined that the employee had moderate multilevel degenerative disc disease attributable to the 2013 auto accident. He assigned a seven percent impairment rating to the body as a whole. In light of this opinion, the employer sought an independent medical evaluation from the Medical Impairment Registry ("MIR"). Dr. Randolph was selected from a list provided by the registry. Dr. Randolph concluded that the employee's pain was out of proportion to the findings of the examination and studies, concluded that the employee suffered from chronic low back pain with nonverifiable radicular components, Dr. Randolph assigned a permanent impairment rating of two percent to the body as a whole.
Following a bench trial, the trial court determined, in relevant part, that the employee had proved by clear and convincing evidence that he had sustained a seven percent permanent impairment to the body. The employer appealed.
Medical Impairment Registry
The Special Workers' Compensation Appeals Panel ("the Panel") observed that the Medical Impairment Registry Program had been established to assist in the resolution of disputes regarding the degree of medical impairment ratings and that pursuant to Tenn. Code Ann. § 50-6-204(d)(5), when an IME from the Program's registry was utilized, that expert's opinion was presumed to be an accurate impairment rating; provided, however, that this presumption may be rebutted by clear and convincing evidence to the contrary [emphasis added].
Clear and Convincing Evidence
Citing earlier decisions, the Panel indicated the clear and convincing evidence standard meant that the MIR evaluation is the accurate impairment rating if no evidence had been admitted that raised a "serious and substantial doubt" about the evaluation's correctness. In the instant case, the trial court found the evidence offered by the employee constituted "clear and convincing evidence" that overcame the presumption of correctness. Reviewing the C-32 Form and the medical depositions, from which the Panel could draw its own conclusions, there was no evidence raising a serious or substantial doubt about the correctness of Dr. Randolph's evaluation. While the employee's expert gave a thoughtful medical assessment of the employee's condition based on the employee's complaints, he did not offer persuasive evidence to rebut the statutory presumption. The employee's expert apparently believed the employee was truly enduring pain. Other than the employee's own testimony, the Panel was left with physicians who disagreed as to the presence of radiculopathy. Simply put, the MIR physician's impairment rating had not been rebutted.