By: Allen Grant, Partner, Nashville

Possibly the most common question I get from clients is, “Do I have to give them a panel of physicians?” The answer is relatively simple under the new law constructs in Tennessee. By and large, if medical treatment is required for the injury, then yes, a panel must be offered. The pertinent rule states, “Upon notice of any workplace injury, other than a minor injury for which no person could reasonably believe requires treatment from a physician, the employer shall immediately provide the injured employee a panel of physicians that meets the statutory requirements for treatment of the injury.”  In other words, in all situations where the injury would require medical treatment outside of simple first aid, a panel is required to be provided.  And the penalties for not providing one can be steep: the BWC rules provide for a penalty of up to $5,000 if a panel of physicians has not been provided to the claimant within five business days of his report to the employer of an injury that would require medical attention.

That being said, there are several situations where an employer/insurer is hesitant to provide a panel of physicians; for example, when there are known prior injuries or pre-existing conditions, or when the employer questions the legitimacy of the claim altogether. It can be tempting to decline to offer a panel of physicians in these situations.  However, our Courts strongly favor providing a panel and for the panel physician to make the causation determination.  In the recent case of Thomas v. Zipp Express (W.C. Appeals Board, August 2, 2016), the employee had a blackout while walking and fell, suffering injuries.  The employer did not provide a panel of physicians but instead sought a causation opinion via a thorough records review with an orthopedic physician, who found the injury was not primarily related to the employment, and the claim was denied.  Even in the face of the records review physician’s opinion, the Appeals Board upheld the trial court’s order that a panel of physicians be provided to the employee, which was grounded in part in the ER records that suggested the blackout’s cause was unknown.  In short, the lesson here is that our judges want to see the panel provisions enforced, and for the panel physician to be the one to make the causation determination.

As in all cases, in the Thomas matter the panel-chosen physician will still have to find the blackout and fall were “primarily related” to the employment in order for the employee to have a compensable claim.  However, the employer could have opted to attack causation on the front end through providing a panel of favorable physicians and presenting the results of their investigation to that physician with a request for a causation review.  A favorable causation opinion from a panel-physician is difficult for an employee to overcome, and is perhaps the easiest route to effectively shut down a claim before it starts.  Under Tennessee law, the opinion of the panel-selected treating physician is presumed correct on the issue of causation.  This is a rebuttable presumption, but the employee will have to retain his own doctor to challenge it.

This is not to say that in absolutely every situation should a panel be provided. There can always be instances when the existing medical or factual evidence directly refutes the employee’s claim of injury, or where there is clear documented evidence that the alleged injury did not occur in the course and scope of the employment or arise out of the employment.  However, if the issue is a medical one, you might be best situated to offer the panel and then present your evidence to the selected physician and request a review for the causation of the claimant’s complaints under the heightened burdens of proof in Tennessee new law claims.

Every claim is, of course, unique and the decision of when or whether to offer a panel can be a strategic one, and have major ramifications for the claim moving forward. If you have any questions regarding the compensability of any claim or your exposure, please feel free to contact our Nashville office to review the specific facts of your case.