Disagreement Does Not Equal Clear and Convincing Evidence That Tennessee MIR Physician’s Opinion was Wrong

Where the opinion offered by an employee’s medical expert merely disagreed with the medical impairment registry (MIR) physician’s findings, yet did not show how that the MIR physician had used an incorrect method in assigning her impairment rating or had offered an inappropriate interpretation of the AMA Guides, the employee failed to offer the sort of clear and convincing evidence needed to overcome the statutory presumption of accuracy afforded an MIR physician’s impairment rating, held a Special Workers’ Compensation Appeals Panel of the Tennessee Supreme Court, in Williams v. Ajax Turner Co., 2017 Tenn. LEXIS 204 (Apr. 12, 2017). The Panel stressed that the employee’s expert utilized the range of motion test—and assigned a 20 percent permanent anatomical impairment to his left leg—because he was dissatisfied with the result generated by the diagnosis-based method, which had been utilized by both the employer’s expert and the MIR phyisican. Applying that latter method, both the employer’s expert and the MIR physician assigned a five percent impairment. The Panel said that while the employee’s expert have have had a sincere disagreement with the AMA Guides, such a disgreement did not affirmatively show that the MIR physician had erred in utilizing the diagnosis-based method.

Background

The employee sustained a compensable injury when a co-worker ran over the back of his left foot with a forklift. He received TD benefits and medical benefits from his employer. The employee’s treating physician assigned a 20 percent permanent anatomical impairment to his left leg as a result of the injury. The employer sought a second opinion, and after performing a medical records review, the employer’s physician opined that employee had sustained only 5 percent permanent impairment to his left leg due to the injury. Based on this second opinion, the employer requested an evaluation through the medical impairment registry (“MIR”) program. After examining the employee and reviewing his medical records, the MIR physician also opined that the employee had sustained 5 percent permanent impairment to his left leg.

Treating Physician’s Opinion

Applying Table 16–12, titled Peripheral Nerve Impairments in the AMA Guides, Sixth Edition (“Guides”), the employee’s treating physician, an orthopedic surgeon, assigned 3 percent impairment to the left leg for each of two nerve injuries. Due to residual stiffness in Employee’s foot and a fifteen degree flexion contracture, the doctor assigned an additional 15 percent impairment to the leg. Using the range-of-motion method, the doctor assigned the employee 21 percent (corrected by the trial court to 20 percent) impairment to his left leg due to his injury.

Employer’s Expert

The employer’s expert, also an orthopedic surgeon, testified that the Guides direct physicians to use the diagnosis-based method when calculating impairment ratings for lower extremity injuries. He acknowledged the Guides indicate “in certain conditions such as tendon injuries, burns, and severe scarring, or crush injuries to the joint that it would be appropriate … to use [the] range[-]of[-] motion [method].” However, because the employer’s expert concluded that Employee’s injury was not one that justified use of the range-of-motion method, he applied the diagnosis-based method to calculate the impairment—specifically, he used the “soft tissue injury due to a contusion or crush injury” diagnosis. The employer’s expert determined that the employee had a “plus one” modifier, resulting in 2 percent impairment of the lower extremity. He assigned an additional 3 percent impairment for the documented injury to Employee’s sural nerve.

MIR Physician

Due to the conflicting opinions offered by the two medical experts, the employer sought an MIR evaluation. Dr. Suneetha Nuthalapaty acted as MIR physician. She examined the employee and reviewed his medical records. She diagnosed the employee with a left heel crush injury, assigning a 2 percent impairment rating for the crush injury and a 3 percent impairment rating for the sural nerve injury, for a total impairment of 5% to the left lower extremity.

The MIR physician testified that, although the Guides contain a range-of-motion method for assigning impairment, the diagnosis-based method of assigning impairment was the preferred method. Like the employer’s expert, she concluded that the employee had not sustained an injury to which the Guides suggest application of the range-of-motion method. She emphasized that the employee had sustained a crush injury to his heel, not to his ankle joint.

Disagreement with MIR Physician’s Findings Does Not Constitute Clear and Convincing Evidence

The Panel concluded that, at best, the evidence presented a disagreement between medical expert witnesses as to the proper diagnosis of an employee’s condition. Expert medical evidence that merely disagreed with the MIR physician’s findings did not constitute the clear and convincing evidence needed to overcome the statutory presumption of accuracy afforded an MIR physician’s impairment rating. The Panel added that dissatisfaction with the diagnosis-based method, even when sincere, did not constitute clear and convincing evidence that the MIR physician was wrong.

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