Council Considers Non-Compliance, Letters to Experts

Council Considers Non-Compliance, Letters to Experts

The appeal board issued an opinion yesterday, reiterating the fairly well-established parameters of medical non-compliance in the Workers’ Compensation Act. The decision also ruled that trial judges have an obligation to review letters requesting expert opinions for accuracy with respect to fact and law.

In Mary Bailey v. Amazon, the employee reported an arm and shoulder injury when she was hit by a large cart at work.

The employer, Amazon, initially accepted the claim and authorized treatment with Dr. Robert Sass. But after two missed dates, he denied the request.

After the denial, Amazon lawyers sent a “medical questionnaire” to Dr. Sass, and he responded several months later. In the letter, Amazon told Dr. Sass that, “according to Tennessee law, … medical noncompliance occurs when patients fail to show up for a single scheduled medical visit.” The letter also said that Bailey had “missed at least three regular visits”.

The letter then asked if “this medical non-conformity [had] negative impact” on Bailey’s treatment; Dr. Sass answered “yes”. The doctor also answered “yes” to the following questions:

  • “Is it your medical opinion that [Employee]The medical non-compliance of acted as an intermediate event that impacted his recovery and treatment following his right hand contusion? »
  • ” Do you think that [Employee]The medical non-compliance of and the delay in her treatment that she caused contributed more than fifty percent (50%) to causing her current condition? »

Bailey requested an expedited hearing. She testified that she missed the first appointment because she had been diagnosed with COVID-19 and was unaware of the missed second appointment.

The trial court credited his testimony, gave the questionnaire little weight and ordered additional medical benefits. Amazon appealed.


The Workers’ Compensation Act states that if an injured employee “refuses…to accept medical or specialist medical services which the employer is required to provide”, then the “employee’s right to compensation is suspended…as long as the injured employee continues to refuse.”

The Commission found it “questionable” that Bailey’s actions constituted non-compliance. Bailey testified, without rebuttal, that she had COVID and was unaware of the second date. This was not a “refusal” to accept medical services, the Commission explained.

Moreover, even if this were the case, the remedy was to “suspend” compensation during the period of non-compliance. Instead, without seeking any explanation for the missed appointments, Amazon denied the claim.

The Board was unconvinced by Amazon’s efforts to back up its refusal by later sending Dr. Sass the “medical questionnaire.”

The judges took issue with the letter’s statement that “according to Tennessee law, medical noncompliance occurs when patients fail to attend a single scheduled medical visit.” The Council said that this assertion is “not supported by any legal or jurisprudential reference”.

Additionally, the letter suggested that the medical non-compliance could serve as an “intermediate event.” But, instead of using that phrase in the context of medical causation, which is how that term is typically used in workers’ compensation cases, he asked if the non-compliance was “an event intermediary which affects his recovery and treatment”. The Board observed: “Dr. Sass’ answer to this question is irrelevant to the question of whether the employee suffered a work-related injury that resulted in the need for medical attention.

The Commission rejected Amazon’s argument that, in assessing the content of the questions posed to Dr. Sass, the trial court became an “advocate” for Bailey. The Rules of Evidence direct a judge to consider “[t]he facts or data… on which an expert bases an opinion or an inference. Moreover, according to the case law, when evaluating expert evidence, a trial court is authorized to take into account “the information available” to the experts.

Thus, the trial court had an obligation to consider the facts or data underlying the opinions of Dr. Sass, including the hypothetical conditions specified in the question.

Moreover, although an employer is not “obligated to condition [its] questions to the experts in such a way as to present a beneficial case for the Employee”, the way in which the questions are formulated is relevant in the examination of the answers of the expert.

“An employer risks that a trial court will give little weight to an expert’s answer to a question that contains one or more misstatements of law or fact,” the Board wrote. “In summary, we agree with the trial court’s assessment of the weight given to Dr. Sass’ responses to the medical questionnaire.”

The Board found: “The employer’s decision to deny the employee’s claim based on her two missed medical appointments, without considering any explanation as to why she missed the appointments. you, is not supported by Tennessee law. The delay in processing caused by the employee’s unsubstantiated denial of the claim is far more onerous in the circumstances of this case than the two missed medical appointments. »

Physicians’ signed responses to letters seeking their expert opinion are only admissible in workers’ compensation cases in expedited hearings, according to court rules. In this case, since the notice is the result of an interlocutory review, Amazon can no longer appeal.

By Jane Salem

Courtesy of Tennessee Workers’ Court Compensation Claims


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Warning: publishes independently generated writing from a variety of workers’ compensation industry stakeholders. The opinions expressed are solely those of the author and do not necessarily reflect those of

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