By Jane Salem, Staff Attorney
Tennessee Bureau of Workers’ Compensation
Nashville, TN

 

Medicine, like so many other professions and businesses these days, seems to have adopted a team approach to patient care. Workers’ compensation is no exception. Injured workers often see many providers when treating, from fields other than medical doctors.

Tennessee law has clarified the proper roles of these other providers. The common theme is they support the physicians but don’t supplant them.

The statute contemplates medical doctors and chiropractors making the major decisions.

For example, as to compensability, the Tennessee Workers’ Compensation Law states that an injured worker must show that the injury arose primarily out of employment, and this must be shown “to a reasonable degree of medical certainty,” that the employment contributed more than 50% in causing the injury. This means, generally speaking, that medical doctors must give causation opinions for the judges’ consideration (except in obvious cases, e.g., a worker accidentally amputates a finger while operating a power saw at work).

Moreover, under the statute panels must list “physicians, surgeons, chiropractors, or specialty practice groups.” No other category of provider is listed. As to impairment ratings, they are assigned by “the treating physician or chiropractor.”

Case Managers, Nurses, Nurse Practitioners, Physician Assistants

In the 1990s, the Division (now Bureau) of Workers’ Compensation implemented rules for “case managers” – typically registered nurses with advanced education or certifications. The development of nurse/case managers represented an advancement for the role of some nurses in workers’ compensation.

The current iteration of rules for case managers states that, among their duties, they may develop treatment plans, monitor the treatment progress of the injured employee, assess whether alternate medical care services are appropriate, ensure that the injured worker is following the prescribed medical care plan, and formulate a plan for return to work.

But the rules are also very specific regarding what a case manager cannot do. Among the activities that a case manager “shall not” do are:

• Prepare the panel of physicians or influence the employee’s choice of physician.
• Discuss with the employee or physician what the impairment rating should be.
• Determine whether the case is work related.
• Question the physician or employee regarding issues of compensability.

The last two prohibitions mirror a Tennessee Court of Appeals 2008 ruling in a wrongful death case. In Hinson v. Claiborne & Hughes Health Center, plaintiffs presented evidence from a registered nurse. She testified by affidavit that she was familiar with the standard of care at nursing homes and, in her opinion, the care an elderly patient received fell below it. The nurse further stated that his ultimate death was “more likely than not directly impacted” by the failures of this particular nursing home.

The appellate court concluded, with little discussion, that, “A nurse is not an expert who can testify as to medical causation.”

Fast-forward to 2015, where the Tennessee Workers’ Compensation Appeals Board cited Hinson to conclude that nurse practitioners in addition to nurses can’t give causation opinions.

In Dorsey v. Amazon.com, citation omitted, the injured worker never saw a medical doctor. Rather, a nurse practitioner evaluated her and gave the opinion that her condition wasn’t work-related. The employer denied the claim based on that opinion.

The Appeals Board held that this was an invalid basis for denial. The medical records didn’t contain an opinion from a physician regarding causation, the Board reasoned. The opinion of the nurse practitioner “did not and could not provide a valid basis for denial of the claim based on causation.” So, the rule may be used as a shield but not a sword.

Administrative rules echo this – and state additional prohibitions.

Specifically, nurse practitioners, physician assistants, and “other mid-level practice extenders under the supervision, direction and ultimate responsibility of a licensed physician,” may provide treatment ordered by the attending physician “in accordance with their licensing.” However, “only the supervising physician . . . may determine medical causation regarding the injury, may issue a permanent impairment rating, and may determine the date of an injured employee’s maximum medical improvement.”

Physical and occupational therapists

In a 1991 opinion, Bolton v. CNA Insurance, 821 S.W.2nd 932 (TN 1991) an employer argued that a trial court incorrectly assigned a sizeable vocational disability, considering a vocational expert who relied on the opinions of a physical therapist.

In the case, the employee injured his neck and back at work. An authorized physician ultimately assigned a three to five percent permanent partial impairment, but he placed no restrictions. The employee’s attorney then referred the injured worker to a physical therapist for evaluation.

The physical therapist performed tests and determined that the worker had limitations in cervical and lumbar motion. She testified, over objection, that she used the AMA Guides to assign a total whole-body impairment rating of 18%. She further testified, also over objection, that she placed physical restrictions.

The Tennessee Supreme Court reversed, holding that a physical therapist “is not qualified to form and express an expert opinion as to the permanent impairment or permanent physical restrictions of an injured person.”

The justices wrote: “[A] physical therapist’s testimony must be limited to objective findings and cannot encompass an opinion on ultimate disability. As a result, that part of the vocational expert’s opinion which was solely based on the opinions of the physical therapist as to permanency and physical restrictions was inadmissible evidence.”

But the high court commented that nothing limits a physical therapist from making future physical activity recommendations to the referring physician or a patient, based on the results of tests performed within the scope of the physical therapist’s licensure. Physical therapists may also testify on those matters.

A few years later, a Supreme Court Panel relied on Bolton to reach a similar conclusion regarding occupational therapists in La-Z-Boy, Inc. v. Van Winkle, E2002-01423-WC-R3-CU (TN 2003). In the case, an occupational therapist testified about the purpose of carpal tunnel release surgery. He also gave a detailed explanation of nerve regeneration and said, “It was my opinion that the first FCE was ordered a little too early.”

The Panel held that the occupational therapist was giving an improper “medical” opinion. It cited Bolton for the proposition that physical therapists must give testimony concerning matters within their licensure. So, too, must occupational therapists.

Conclusion

Medical professionals other than doctors often play varied and vital roles in workers’ compensation cases. But generally speaking, the law requires that they remain within their training and licensure. Stated another way, from the legal perspective at this time, providers within other disciplines help medical doctors to offer appropriate and cost-effective care. But they remain in a supportive role.

Efforts are made during each legislative session in Tennessee to broaden the authority to offer causation and impairment opinions to physician assistants. So far, these efforts have been unsuccessful. Whether that will change in the future is unknown.