                                                                                   FILED
                                                                                 Jun 03, 2020
                                                                                 01:16 PM(CT)
                                                                                  TENNESSEE
                                                                             WORKERS' COMPENSATION
                                                                                APPEALS BOARD

             TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                WORKERS’ COMPENSATION APPEALS BOARD

Katie Gray                                   )   Docket No. 2020-08-0198
                                             )
v.                                           )   State File No. 6095-2019
                                             )
Conagra Foods Packaged                       )
Foods Co., Inc., et al.                      )
                                             )
                                             )
Appeal from the Court of Workers’            )
Compensation Claims                          )
Deana C. Seymour, Judge                      )

                                Affirmed and Remanded

The employee sustained a work-related injury to her right ring finger and developed
complications in her hand. She was subsequently diagnosed with complex regional pain
syndrome in her right upper extremity. After she reached maximum medical improvement,
her authorized treating physician assigned a permanent medical impairment rating. The
employer then retained a physician to review medical records and express an opinion
regarding the employee’s permanent medical impairment. Thereafter, because the
opinions of the two rating physicians differed, the employer requested an impairment
evaluation through the Bureau of Workers’ Compensation’s Medical Impairment Rating
Registry (“MIRR”). The employee moved to quash the employer’s request for an MIRR
evaluation, contending that a medical records review is an insufficient basis to support the
existence of a dispute concerning the medical impairment rating. The trial court concluded
there was no legal basis to quash the employer’s request for an MIRR evaluation and denied
the employee’s motion. The employee has appealed. We affirm the trial court’s order and
remand the case.

Presiding Judge Timothy W. Conner delivered the opinion of the Appeals Board in which
Judge David F. Hensley and Judge Pele I. Godkin joined.

Jonathan L. May, Memphis, Tennessee, for the employee-appellant, Katie Gray

Allen Callison, Memphis, Tennessee, for the employer-appellee, Conagra Foods Packaged
Foods Co., Inc.



                                             1
                                     Memorandum Opinion 1

        The facts of this case are undisputed for purposes of this interlocutory appeal. On
September 10, 2018, while working as a machine operator for Conagra Foods Packaged
Foods Co., Inc. (“Employer”), at its facility in Shelby County, Tennessee, Katie Gray
(“Employee”) suffered an injury to her right ring finger. She received authorized medical
care from Dr. Dan Fletcher, an orthopedic physician at OrthoSouth. During the course of
her treatment, Employee suffered from complications described as “multiple contractures
to the right hand.” Thereafter, she was diagnosed with complex regional pain syndrome in
her right upper extremity.

        On October 22, 2019, Dr. Fletcher referred Employee to Southern Hand Centers for
an impairment evaluation. In the impairment report, the therapist noted that “the [range-
of-motion] model [of the AMA Guides to the Evaluation of Permanent Impairment] gave
the most favorable impairment rating for the patient.” The therapist calculated a rating of
13% using the range-of-motion model. In a November 6, 2019 report, Dr. Fletcher, after
reviewing the therapist’s report, stated he was “in agreement with the permanent work
restrictions as well as her overall impairment rating.”

        Thereafter, Employer retained Dr. David West, an osteopathic physician at West
Sports Medicine and Orthopedics, LLC, to complete a review of Employee’s medical
records and offer an opinion as to the extent of Employee’s permanent medical impairment.
In his January 18, 2020 report, Dr. West took issue with the method used by the therapist
to assess Employee’s permanent medical impairment, which had been adopted by Dr.
Fletcher. Dr. West explained that, in his opinion, it was inappropriate to use the range-of-
motion model to calculate impairment because Employee “has reached three, possibly four,
points in the complex regional pain rating system.” He concluded it was most appropriate
to place Employee in Class I impairment for complex regional pain syndrome, which
resulted in a medical impairment rating of 4%.

        On February 18, 2020, Employer requested another impairment evaluation through
the Bureau of Workers’ Compensation’s Medical Impairment Rating Registry (“MIRR”),
which allows such an evaluation in circumstances where there is a “dispute [as to] the
degree of medical impairment.” Employee objected and sought to quash Employer’s
application for an MIRR evaluation, arguing that, by retaining Dr. West, Employer had
manufactured a dispute as to the degree of permanent medical impairment to trigger its
right to seek an MIRR evaluation. Employee further argued that allowing Employer to
create a dispute as to the extent of Employee’s permanent impairment in order to obtain an
opinion from an MIRR evaluator was “unfair” under these circumstances because the
1
 “The Appeals Board may, in an effort to secure a just and speedy determination of matters on appeal and
with the concurrence of all judges, decide an appeal by an abbreviated order or by memorandum opinion,
whichever the Appeals Board deems appropriate, in cases that are not legally and/or factually novel or
complex.” Appeals Bd. Prac. & Proc. § 1.3.
                                                   2
statutory presumption of the correctness of the MIRR evaluator’s opinion “trumps” the
treating physician’s opinion of Employee’s permanent impairment rating. 2

       In response, Employer asserted that its medical expert raised legitimate concerns
regarding the method used by the therapist and adopted by Dr. Fletcher to arrive at an
impairment rating. It further argued that this is exactly the kind of case that the provisions
of the MIRR Program were intended to address. The trial court concluded there was no
legal basis for Employee to object to the MIRR evaluation and denied Employee’s motion
to quash. Employee has appealed.

       The MIRR Program is controlled by Tennessee Compilation Rules and Regulations,
chapter 0800-02-20, which provides that the registry “is available to any party with a
dispute [as to] the degree of medical impairment.” Tenn. Comp. R. & Regs. 0800-02-20-
.02(2) (2018). A “dispute of degree of medical impairment” is defined to include
circumstances in which “at least two different physicians have issued differing permanent
medical impairment ratings in compliance with the Act and the parties disagree as to those
impairment ratings.” Tenn. Comp. R. & Regs. 0800-02-20-.01(7)(a). Moreover, the
regulations governing the MIRR Program define the term “physician” to mean “a person
currently licensed in good standing to practice as a doctor of medicine or doctor of
osteopathy.” Tenn. Comp. R. & Regs. 0800-02-20-.01(14).

       The Tennessee Supreme Court’s Special Workers’ Compensation Appeals Panel
has addressed a similar factual scenario. In Williams v. Ajax Turner Co., No. M2016-
00638-SC-R3-WC, 2017 Tenn. LEXIS 204 (Tenn. Workers’ Comp. Panel Apr. 12, 2017),
the employee alleged a work-related left foot injury. Id. at *1. The authorized treating
physician assigned a permanent impairment rating, and the employer retained a second
physician to complete a medical records review and offer an opinion concerning the
impairment rating. Id. Thereafter, the employer sought an MIRR evaluation. Id. at *1-2.

       In addressing the issues on appeal, the Appeals Panel first noted that “Employee
contends Employer created a ‘dispute’ by hiring Dr. Gaw.” Id. at *12. Employee argued
that only an injured worker, not an employer, should be able to seek a second opinion on
the issue of impairment. Id. In response, the Appeals Panel explained that the statute
allows “either party [to] request an independent medical examiner from the [MIRR]” when

2
  Although Employee does not develop this argument in her brief, it appears to be grounded in the statutory
provisions addressing the presumptions applicable to the accuracy of the treating physician’s and the MIRR
evaluator’s impairment ratings. Tennessee Code Annotated section 50-6-204(k)(7) provides that “[t]he
treating physician’s . . . written opinion of the injured employee’s permanent impairment rating shall be
presumed to be the correct impairment rating,” and that “[t]his presumption shall be rebuttable by the
presentation of contrary evidence that satisfies a preponderance of the evidence standard.” By contrast,
section 50-6-204(d)(5) provides that “[t]he written opinion as to the permanent impairment rating given by
the [MIRR evaluator] . . . 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.)
                                                    3
a dispute exists as to the degree of medical impairment. Id. at *13 (emphasis in original).
After reviewing the applicable regulations, the Appeals Panel concluded, “[w]e find no
support for Employee’s position in the statute, the rules, or any judicial decisions.” Id. at
*13-14. 3

        We conclude the trial court did not err in analyzing this issue. Nothing in the statute
or regulations prevents either party from obtaining a second opinion on the issue of
permanent medical impairment. Likewise, nothing in the statute or regulations prohibits
either party from seeking that opinion based on a review of medical records. Either party
can then seek an MIRR evaluation if a dispute as to the degree of permanent medical
impairment exists. If there are broader policy considerations impacting the construction or
application of the MIRR Program, those concerns should be presented to the General
Assembly. Therefore, we affirm the trial court’s order and remand the case. Costs on
appeal are taxed to Employee.




3
  Although the chapter of the regulations governing the MIRR was amended in May 2018, the MIRR
regulations at issue in this case have not changed significantly since the release of the Appeal Panel’s
decision in Williams.
                                                   4
                 TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                   WORKERS’ COMPENSATION APPEALS BOARD

Katie Gray                                            )      Docket No. 2020-08-0198
                                                      )
v.                                                    )      State File No. 6095-2019
                                                      )
Conagra Foods Packaged                                )
Foods Co., Inc., et al.                               )
                                                      )
                                                      )
Appeal from the Court of Workers’                     )
Compensation Claims                                   )
Deana C. Seymour, Judge                               )

                                   CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced
case was sent to the following recipients by the following methods of service on this the 3rd day
of June, 2020.

 Name                              Certified   First Class   Via   Via     Sent to:
                                   Mail        Mail          Fax   Email
 Jonathan L. May                                                     X     jmay@forthepeople.com
 Allen Callison                                                      X     allen.callison@mgclaw.com
 Deana C. Seymour, Judge                                             X     Via Electronic Mail
 Kenneth M. Switzer, Chief Judge                                     X     Via Electronic Mail
 Penny Shrum, Clerk, Court of                                        X     penny.patterson-shrum@tn.gov
 Workers’ Compensation Claims




Olivia Yearwood
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov
