workerscompensation

Overcoming Medical Impairment Registry Physician’s Opinion on Anatomical Impairment Rating Requires Clear and Convincing Evidence in Tennessee

Recently, the Workers’ Compensation Appeals Panel had the opportunity to address how a Medical Impairment Registry physician’s opinion on an anatomical impairment rating may be overcome in the case of Victory v. Bob Duck Wiler d/b/a Custom Concrete Design, (September 8, 2015). In this matter numerous physicians were of the opinion the claimant had nonspecific back pain, no true radiculopathy and did not require back surgery. Ultimately, Dr. Hazlewood subsequently saw the claimant and reached an opinion the claimant had normal findings and no objective findings of radiculopathy. Dr. Hazlewood provided the claimant a 2% permanent anatomical impairment rating to the body as a whole for the lumbar spine injury.

The claimant underwent an independent medical evaluation by Dr. Richard Fishbein. He provided the claimant a 13% permanent anatomical impairment rating to the body as a whole based upon his findings of radiculopathy.

With this differentiation in the impairment ratings apparent the Medical Impairment Registry physician became involved. The Medical Impairment Registry physician, Dr. Robert Landsberg, provided an opinion the claimant retained a 3% permanent anatomical impairment rating to the body as a whole and did not find true radiculopathy either.

The Trial Court determined the employee and his attorney had overcome the presumption of correctness of the Medical Impairment Registry’s physician and held the employee’s anatomical impairment rating was 13% to the body as a whole as defined by Dr. Fishbein. The Court awarded the employee vocational disability of 54% to the body.

On appeal the Appeals Panel held that to overcome the presumption the Medical Impairment Registry physician’s was correct required clear and convincing evidence. The term “clear and convincing evidence” was not defined by the statute which set in place the Medical Impairment Registry process (T.C.A. § 50-6-204(d)(5)) and therefore, they relied upon a Supreme Court decision which held, “clear and convincing evidence means evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence.”

The Appellate Court, in considering Dr. Fishbein’s testimony, agreed with the characterization of Dr. Fishbein’s testimony as being “unusual.” The Panel determined Dr. Fishbein’s testimony was rambling at times and evasive at others. The Trial Court determined Dr. Fishbein had overcome the Medical Impairment Registry opinion by clear and convincing evidence. The Trial Court found it had seen the employee within the courtroom and was of the opinion the employee had true pain.

With respect to this the Panel held, “whether such a medical condition exists is not a matter that can be determined by observation of a part in the courtroom. It must be decided based on the medical evidence.” With this in mind the Court held the opinion of the Medical Impairment Registry physician had not been overcome by clear and convincing evidence.

Results of this opinion lead to a conclusion that the opinion of the Medical Impairment Registry physician, whether good or bad, will generally be upheld unless there is a presentation of affirmative evidence that an Medical Impairment Registry physician had used an incorrect method to provide a rating or an inappropriate interpretation of the AMA Guidelines. A disagreement between medical experts as to the proper diagnosis of an employee’s condition may not, in and of itself, constitute the clear and convincing evidence needed to overcome the statutory presumption of accuracy afforded a Medical Impairment Registry physician’s impairment rating.

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