                  IN THE SUPREME COURT OF TENNESSEE
                             AT NASHVILLE
                                   June 3, 2011 Session

    WILLIAM H. MANSELL v. BRIDGESTONE FIRESTONE NORTH
                   AMERICAN TIRE, LLC

                  Direct Appeal from the Circuit Court for Smith County
                    No. 2010CV36       John D. Wootten, Jr., Judge


                 No. M2010-02093-SC-R3-WC - Filed August 25, 2011


                              MEMORANDUM OPINION

         In June of 2008, William Mansell (the “Employee”) suffered a compensable injury
to his right shoulder while working for Bridgestone/Firestone North American Tire, LLC (the
“Employer”). Dr. Sean Kaminsky, an orthopaedic surgeon, served as the authorized treating
physician and assigned an impairment rating of 3% to the body as a whole. The Employee
obtained an Independent Medical Evaluation from another orthopaedic surgeon, Dr. Robert
Landsberg, who assigned a 10% impairment rating. When the Benefit Review Conference
at the Department of Labor and Workforce Development (“DOL”) ended in an impasse, the
Employee filed suit.

      Afterward, the Employer filed an “Application for Medical Impairment Rating” with
the DOL, seeking to invoke Tennessee Code Annotated section 50-6-204(d)(5) (2008 &
Supp. 2010), which provides, in relevant part, as follows:

       When a dispute as to the degree of medical impairment exists, either party may
       request an independent medical examiner from the commissioner’s registry.
       If the parties are unable to mutually agree on the selection of an independent
       medical examiner from the commissioner’s registry, it shall be the
       responsibility of the employer to provide a written request to the commissioner
       for assignment of an independent medical examiner with a copy of the notice
       provided to the other party. Upon receipt of the written request, the
       commissioner shall provide the names of three (3) independent medical
       examiners chosen at random from the registry. . . . The employer may strike
       one (1) name from the list, with the rejection made and communicated to the
       other party by facsimile or e-mail no later than the third business day after the
       date on which notification of the list is provided. The employee shall select
        a physician to perform the independent medical examination from the
        remaining physicians on the list. . . . The written opinion as to the permanent
        impairment rating given by the independent medical examiner pursuant to this
        subdivision (d)(5) shall be presumed to be the accurate impairment rating;
        provided, however, that this presumption may be rebutted by clear and
        convincing evidence to the contrary.

(Emphasis added.) In response, the Employee filed a “Motion to Quash MIR,” alleging that
the Employer had not, at any point during the benefit review process with the DOL, sought
the appointment of an independent medical examiner pursuant to the statute. He contended
that because the lawsuit had been filed, section 50-6-204(d)(5) no longer applied, and that,
in consequence, the DOL no longer had the authority to assign an impairment rating based
upon the independent medical examiner’s written opinion. At the hearing on the motion, the
Employer argued that “there are no issues of jurisdiction or administrative versus judicial
authority implicated by the legislatively mandated” procedure under section 50-6-204(d)(5),
and pointed out that the Employee had failed to notify the Attorney General of his challenge
to the validity of the statute.1

        The trial court granted the motion to quash, holding that the DOL had “relinquished
jurisdiction” when the benefit review process reached an impasse, and observing that
Tennessee Code Annotated section 50-6-204(d)(5) was “established for the [limited] purpose
of attempting to resolve workers’ compensation claims while the claim is before the
administrative body . . . and not [after] a Court has acquired jurisdiction over the case.”
When the trial court denied the Employer’s request to file an interlocutory appeal pursuant
to Tennessee Rule of Appellate Procedure 9, the Employer filed an application for an
extraordinary appeal under Tennessee Rule of Appellate Procedure 10. This Court denied
the application by order dated July 27, 2010, and the case proceeded to trial.

       At the conclusion of the presentation of evidence, the trial court accredited the
testimony of the Employee and his wife, Regina, found that the impairment ratings of both
Dr. Kaminsky and Dr. Landsberg had been assigned pursuant to the sixth edition of the
American Medical Association Guides to the Evaluation of Permanent Impairment, and
awarded benefits to the Employee, including future medical expenses and attorney’s fees.
In calculating the amount of benefits, the trial court adopted the 10% impairment rating
assigned by Dr. Landsberg, finding that it “more accurately follow[ed] the mandates of the


        1
          “When the validity of a statute of this state or an administrative rule or regulation of this state is
drawn in question in any action to which the state or an officer or agency is not a party, the court shall require
that notice be given the attorney general, specifying the pertinent statute, rule or regulation.” Tenn. R. Civ.
P. 24.04.

                                                       -2-
AMA Guides, 6th Edition,” and, therefore, was entitled to more weight than Dr. Kaminsky’s
impairment rating of 3%. The trial court further explained as follows:

       [Dr. Kaminsky’s] C-32 as submitted to this Court is rather sterile. I’m not
       even sure how he reached the results that he reached except by reference to
       two tables . . . . I assume . . . those are the referenced pages in the Sixth
       Edition, although I don’t know. . . .

              So, in conclusion, although Dr. Kaminsky is the treating physician, I
       find that his impairment rating and how he got to that is severely lacking . . .
       . When one compares the rating given by Dr. Landsberg with the trial
       testimony that I’ve heard and the limitations that this gentlemen has as
       corroborated by . . . his wife who I find to be very credible, I think the 10
       percent is the appropriate medical impairment rating in this case.

       While the judgment makes no specific reference to the Employer’s attempt to invoke
the medical impairment rating (“MIR”) process, the trial court addressed the issue on the
record:

       [J]ust as an aside I did deny the defense’s request for an M[IR]. I do note also
       that that came after the impasse. I do believe that once the case is filed in
       court it is in my jurisdiction. I do not believe that the law of this state . . .
       allows me to re-route it to an MIR process wherein I would . . . almost be
       bound by an administrative person with the [DOL] in any findings that they
       would have. I think that takes away from the judicial powers that I would have
       to make specific findings of facts in any case, but particularly in these kinds
       of cases. . . .

              I think it is . . . usurping [a] judicial power that is basically vested in
       [the court] once the law suit is filed.

        When the Employer filed a timely notice of appeal, this Court granted direct review
and sustained a motion by the Attorney General to file a brief as amicus curiae. The
Employer argues that the trial court erred by granting the motion to quash because the
procedure set forth in Tennessee Code Annotated section 50-6-204(d)(5) is not an
impermissible infringement on the jurisdiction of the trial courts. Moreover, the Employer
contends that because the motion to quash challenged the validity of the MIR process set
forth in section 50-6-204(d), the trial court erred by failing to require notice to the Attorney
General pursuant to Tennessee Rule of Civil Procedure 24.04.



                                              -3-
        The Attorney General submits that the statute is not limited to the administrative
process and requires only “a dispute as to the degree of medical impairment,” which might
arise either before or after an impasse in the benefit review process has been declared by the
DOL. Further, he argues that because section 50-6-204(d) provides that the impairment
rating given by the independent medical examiner is only presumed to be accurate, and such
presumption may be rebutted by clear and convincing evidence to the contrary, the MIR
process does not interfere with the adjudicative function. In response, the Employee contests
that the application of section 50-6-204(d) after a complaint has been filed in circuit or
chancery court violates the separation of powers clause of the Tennessee Constitution
because it infringes upon the trial court’s essential function as fact-finder.2 Moreover, he
claims that the Employer’s failure to seek a medical impairment rating from an independent
medical examiner during the benefit review process constitutes a waiver of the right. Finally,
the Employee also argues that the Employer failed to demonstrate that there existed “a
dispute as to the degree of medical impairment,” which is a condition precedent to obtaining
the opinion of an independent medical examiner pursuant to section 50-6-204.

         In its order granting the Employee’s motion to quash, the trial court concluded that
Tennessee Code Annotated section 50-6-204(d)(5) does not apply after the administrative
process has been exhausted and the complaint has been filed in the circuit or chancery court.
In its findings of fact issued from the bench at the conclusion of the hearing, the trial court
suggested that separation of powers principles precluded any other interpretation of section
50-6-204(d)(5). Although the Employer, the Employee, and the amici have presented
arguments on appeal regarding the constitutionality of the statute, this issue, in our view, was
not properly presented, argued, or litigated before the trial court. Because the Employee did
not challenge the constitutionality of the statute’s application after the exhaustion of the
benefit review process, the Attorney General did not have the opportunity to address the issue
until after the filing of the appeal.

       Although this Court is cognizant of its authority to grant any relief an appellate
proceeding requires, see Tenn. R. App. P. 36(a), we are also mindful of the well-settled
principle not to decide constitutional challenges unless the resolution of that question “‘is


        2
          Article II, section 2 of the Tennessee Constitution provides that no member of the legislative,
executive, or judicial branch “shall exercise any of the powers properly belonging to either of the others.”
“The legislative branch has the authority to make, alter, and repeal the law; the executive branch administers
and enforces the law; and the judicial branch has the authority to interpret and apply the law.” Richardson
v. Tenn. Bd. of Dentistry, 913 S.W.2d 446, 453 (Tenn. 1995). “A legislative enactment which does not
frustrate or interfere with the adjudicative function of the courts does not constitute an impermissible
encroachment upon the judicial branch of government.” Underwood v. State, 529 S.W.2d 45, 47 (Tenn.
1975); see also Lynch v. City of Jellico, 205 S.W.3d 384, 393 (Tenn. 2006) (holding that benefit review
conference mandated by workers’ compensation statute does not violate separation of powers).

                                                     -4-
absolutely necessary to determining the issues in the case and adjudicating the rights of the
parties.’” Waters v. Farr, 291 S.W.3d 873, 882 (Tenn. 2009) (quoting State v. Taylor, 70
S.W.3d 717, 720 (Tenn. 2002)). Because the trial court’s determination that the General
Assembly did not intend the procedure set forth in section 50-6-204(d)(5) to be applied after
a complaint is filed is inextricably intertwined with the constitutional question, the order
granting the Employee’s motion to quash is vacated.3 The cause is remanded to the trial
court so the Employee, the Employer, and the Attorney General may have the opportunity to
address the constitutional issue.4

      Further, the Employee argues that section 50-6-204(d)(5) should not apply because
the Employer has not shown that there is “a dispute as to the degree of medical impairment.”
The Employee cites to the DOL regulations, which state, in relevant part, that

        “[d]ispute of degree of medical impairment” means one of two things: either
        at least two (2) different physicians have issued differing permanent medical
        impairment ratings in compliance with the Act and the parties disagree as to
        those permanent impairment ratings; or, a dispute may also exist if a physician
        has issued an opinion in compliance with the Act that no permanent medical
        impairment exists, yet that physician has issued permanent physical restrictions
        to the injured employee.

Tenn. Comp. R. & Regs. 800-2-20-.01(5) (2006) (emphasis added). Based upon this
regulatory provision, the Employee argues (1) that because the parties stipulated that Dr.
Landsberg’s impairment rating was 10% and Dr. Kaminsky’s was 3%, they did not “disagree
as to those permanent impairment ratings,” and (2) that Dr. Kaminsky’s impairment rating
was not “in compliance with the Act” because it was not “based on the applicable edition of
the AMA Guides,” as required by Tennessee Code Annotated section 50-6-204(d)(3)(B).



        3
         Because we are not deciding whether section 50-6-204(d)(5) only applies during the administrative
process, we have pretermitted consideration of the Employee’s claim that the Employer waived the right to
invoke the MIR process by failing to seek the remedy before the declaration of an impasse in the benefit
review process.
        4
           The trial court may consider the impairment rating of the independent medical examiner for the
limited purpose of fully developing the record, addressing all arguments regarding the constitutionality of
the statute, and determining whether, even if constitutional, the independent MIR can be overcome by clear
and convincing evidence to the contrary. The Employee argues on appeal that the presumption set forth in
section 50-6-204(d)(5) operates, in practice, to impede the adjudicative function of the trial courts. It might
be difficult for the trial court to address this argument without taking into account the impairment rating of
the independent medical examiner. Moreover, making the MIR a part of the record would provide for a more
economical disposition of any appeal taken from the trial court’s order on remand.

                                                     -5-
        Initially, a dispute is not transformed into an agreement simply because the parties
stipulate the evidence to be presented by each side. Secondly, it is true that the trial court
expressed skepticism as to the methodology Dr. Kaminsky used in reaching his impairment
rating. Notwithstanding these statements, however, the trial court concluded in its final order
“that Dr. Sean Kaminsky assigned an impairment rating of 3% to the body as a whole
pursuant to the AMA Guides 6th Edition.” Because “two (2) different physicians have issued
differing permanent medical impairment ratings in compliance with the Act and the parties
disagree as to those permanent impairment ratings,” there exists a “[d]ispute of degree of
medical impairment” as defined by the DOL regulations. See Tenn. Comp. R. & Regs.
800-2-20-.01(5). Whether the Employer may attempt to resolve this dispute by seeking the
opinion of an independent medical examiner pursuant to Tennessee Code Annotated section
50-6-204(d)(5) is an issue for the Employee, the Employer, and the Attorney General to
address on remand.

       The judgment of the trial court is vacated. This cause is remanded to the trial court
for a hearing and determination within ninety (90) days of the date of this order of the
Employee’s motion to quash the Employer’s request for a designation of a physician from
the MIR registry. Should there be an appeal from the judgment of the trial court resulting
from this remand, the appeal shall be placed on the docket of this Court and shall not be
referred to the Special Workers’ Compensation Appeals Panel. See Tenn. Sup. Ct. R. 51, §
2.

     Costs of this appeal are assigned one-half to the Employee and one-half to the
Employer, for which execution may issue if necessary.


                                                    PER CURIAM




                                              -6-
