Addington: Presumptions in Workers' Compensation

Monday, October 24, 2022 | 0

History buffs like me will remember the words of H.M. Stanley: “Dr. Livingstone, I presume.”

Judge Brian Addington

And, anyone who watches movies or television can likely complete this sentence: A criminal defendant is “presumed ______ until _______.” Or if someone disappears, how many years until they’re presumed dead?

We have many presumptions in the law generally, and specifically, workers’ compensation uses them, too. This article will talk about the most common presumptions — and a few of the not-so-prevalent ones, too.

A “presumption,” according to Black’s Law Dictionary, is “a legal inference or assumption that a fact exists, based on the known or proven existence of some other fact[.]” In addition, “a presumption shifts the burden of production or persuasion to the opposing party, who can then attempt to overcome the presumption.”

Stated another way, it’s a proof shortcut of sorts, but the party who disagrees with the presumption, generally speaking, can disprove it (unless it’s a “conclusive” presumption).

As trial judges, perhaps our favorite presumption is that we’ve gotten something right. Section 50-6-239(c)(7) says the findings and conclusions of a workers' compensation judge are presumed correct unless the preponderance of the evidence is otherwise. Of course, it’s the Appeals Board that applies that presumption, not us — and it has shown a willingness to hold that the presumption was overcome. Hey, we’re only human.

Many presumptions involve doctors. A presumption about physicians that we do use often at the trial-court level is Section 50-6-102(14)(E): The opinion of the panel physician is presumed correct on the issue of causation, but the presumption can be rebutted by a preponderance of evidence.

If you search this presumption in Lexis, you’ll literally get hundreds of results, from both the Court of Workers’ Compensation Claims and the Appeals Board. Many, many cases turn on this presumption.

I used “relevance” for sorting the results, and a recent case from the Appeals Board popped up, Johnson v. Inspire Brands d/b/a Blazin Wings Inc. Among the many interesting aspects of that case, the board held that the presumption of correctness for the medical causation opinions of two physicians, both chosen from panels, applies to both. The board rejected the employer’s argument that the presumption can apply to only one doctor, the “current” doctor.

Incidentally, the employer cited another presumption to bolster (albeit unsuccessfully) its position. That presumption is Tennessee Code Annotated Section 50-6-204(a)(3)(H): Any treatment recommendation by a panel physician is presumed medically necessary. As trial judges, we consider this presumption frequently, too.

When I searched that presumption, the most “relevant” result was Walls v. United Technologies Corp. In Walls, the trial court held that an employer didn’t overcome the presumption of medical necessity of recommended surgery attached to two treating physicians’ opinions, when the employer relied on the contrary opinion of a utilization review physician, with which the bureau’s medical director and assistant medical director agreed.

The case turned on the fact that the utilization review doctor concluded the employee was a “suboptimal candidate” for surgery, but he didn’t directly discuss medical necessity. Nor did the bureau’s medical directors, who reviewed the decision for purposes of appeal under the utilization review process.

Another presumption that comes up often is 50-6-204(A)(1)(I), which provides that if the treatment follows the treatment guidelines, the presumption can be overcome only with “clear and convincing evidence demonstrating that the recommended treatment deviates from, or presents an unreasonable interpretation of, the treatment guidelines.” Moreover, Section 50-6-124(h) says that for utilization review purposes, any treatment that explicitly follows the treatment guidelines is presumed medically necessary.

For guidance on the interplay between these two presumptions, see Morgan v. Macy’s. In this case, the Appeals Board held that if an employee seeks to take advantage of the presumption in Section 50-6-124(h), then she has the initial burden of proving that the recommended treatment “explicitly follows the treatment guidelines” or “is reasonably derived therefrom.” Once the employee has done so, the burden then shifts to the employer to offer clear and convincing evidence that the treatment “erroneously applies the guidelines” or that it “presents an unwarranted risk to the injured worker.”

And another presumption that comes into play frequently is Section 50-6-204(k)(7), which says that the treating physician’s impairment rating is presumed accurate. Again, hundreds of cases have applied this presumption.

An important opinion on it from the Appeals Board is Hart v. ThyssenKrupp Elevator Corp., where an employer successfully rebutted the presumption for the treating doctor’s rating. The case involved a single authorized physician who testified that the 6% rating he assigned contemplated the distal clavicle resection performed for the employee’s AC arthrosis, which wasn’t work-related; and if that weren’t considered, the rating is 3%. The board held the 3% rating was correct.

Some occupations are accorded presumptions due to the nature of their work. For example, under Section 7-51-201(a)(1), law enforcement officers have a presumption that any impairment by hypertension or heart disease is caused by employment. Likewise for firefighters, Section 7-51-201(b)(1) says that they are presumed to have an injury caused by work for disease of the lungs, hypertension, heart disease, leukemia or testicular cancer. And, emergency rescue workers have a presumption about certain infectious diseases under Section 7-51-209. For each of these presumptions to kick in, the injured worker must have met certain requirements.

So, these are some of the weightiest presumptions in the Workers’ Compensation Law. But others exist as well. Consider:

• Section 50-6-110(c)(1): When raising an intoxication defense, if the employer is a member of the Drug-Free Workplace Program, and an injured worker tests positive, the drug or alcohol use is presumed the proximate cause of the injury.
• Section 50-6-204(d)(5): The impairment rating assigned by a Medical Impairment Rating Registry physician is presumed accurate.
• Section 50-6-207(1)(E): An employee is conclusively presumed to be at maximum medical improvement when the treating physician ends all active treatment, and the only remaining care is for pain or a mental injury that arose out of a compensable injury.
• Sections 50-6-210(a)(1) and (2): A surviving spouse who was living with the deceased spouse before his or her death, and children under 16, are conclusively presumed to be wholly dependent.
• Section 50-6-242(a)(2)(B): Concerning extraordinary benefits, the authorized treating physician’s certification that the employee no longer has the ability to perform the employee’s pre-injury occupation is presumed correct.

So there you have it: a list of the many presumptions in Tennessee’s statutes concerning workers’ compensation. It’s a fairly long list, and we presume that if you’ve read this far, you’ve found it somewhat helpful.

Brian Addington is a judge in the Tennessee Court of Workers' Compensation Claims, Gray. This entry is republished with permission from the court's blog.