The opinion
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Katlyn N. McLaurin ) Docket No. 2017-03-1133
)
v. ) State File No. 69883-2017
)
AT&T Services, LLC, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Lisa A. Lowe, Judge )
Affirmed and Remanded—Filed January 31, 2019
In this second interlocutory appeal, the employer challenges the trial court’s denial of its
request to compel the employee to submit to a second independent medical examination
by a physician of the employer’s choosing. The trial court concluded the employer’s
request was unreasonable and premature and denied the employer’s motion. The
employer has appealed. Finding no abuse of discretion, we affirm the trial court’s
decision and remand the case.
Presiding Judge Marshall L. Davidson, III, delivered the opinion of the Appeals Board in
which Judge David F. Hensley and Judge Timothy W. Conner joined.
W. Troy Hart, Knoxville, Tennessee, for the employer-appellant, AT&T Services, LLC
Timothy Roberto, Knoxville, Tennessee, for the employee-appellee, Katlyn N. McLaurin
Factual and Procedural Background
Katlyn McLaurin (“Employee”) alleged suffering mental injuries as a result of
being confronted on September 8, 2017, by an armed resident of a house to which she
had been dispatched by AT&T Services, LLC (“Employer”), for an installation job.
Employer initially denied the claim but later entered into an agreed order to provide
reasonable and necessary medical treatment. As a result of a prior expedited hearing and
interlocutory appeal, Employer was also required to provide past and ongoing temporary
disability benefits. See McLaurin v. AT&T Services, LLC, No. 2017-06-1133, 2018 TN
Wrk. Comp. App. Bd. LEXIS 24 (Tenn. Workers’ Comp. App. Bd. May 29, 2018).
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Subsequently, Dr. John Robertson, Employee’s authorized physician, placed
Employee at maximum medical improvement on August 24, 2018, and assigned a 20%
permanent partial impairment rating. Employer requested, and Employee agreed to
attend, an examination with a physician of Employer’s choice. As a result, Employee
was evaluated by Dr. Michael Fisher on October 25, 2018.
Dr. Fisher stated that in his “professional opinion there is no question that her
present injury is greater than 50% related to the alleged work event.” He credited
Employee’s assertion that her condition had improved and recommended she be re-
evaluated in six months to determine whether she had reached maximum medical
improvement and, if so, the extent of her impairment. Dr. Fisher noted he was “willing to
see her again, but I will be retiring and hope to be closing my practice by April 1.
Because of this, if I were to see her, it would need to be before April 1, 2019.”
Within days of Dr. Fisher’s evaluation, Employer filed a motion to compel
Employee to undergo a second evaluation by a different physician of its choosing,
asserting such a request was reasonable because Dr. Fisher would be unavailable after
April 1, 2019, and that a third opinion “would be necessary and helpful to the court.”
Employee disagreed, arguing Employer was seeking another opinion because it was
displeased with Dr. Fisher’s opinion. The trial court denied Employer’s motion, finding
“[Employer’s] request for an IME with a second physician unreasonable and premature at
this time.” Employer has appealed.
Standard of Review
The standard we apply in reviewing a trial court’s decision regarding whether to
grant or deny a request for a medical examination pursuant to Tennessee Code Annotated
section 50-6-204(d)(1) is abuse of discretion. Perry v. Gap, Inc., No. M2004-02525-WC-
R3-CV, 2006 Tenn. LEXIS 448, at *7 (Tenn. Workers’ Comp. Panel May 31, 2006).
This standard prohibits an appellate court from substituting its judgment for that of the
trial court, and the appellate court will find an abuse of discretion only if the trial court
“applied incorrect legal standards, reached an illogical conclusion, based its decision on a
clearly erroneous assessment of the evidence, or employ[ed] reasoning that causes an
injustice to the complaining party.” Wright ex rel. Wright v. Wright, 337 S.W.3d 166,
176 (Tenn. 2011) (alteration in original) (quoting Konvalinka v. Chattanooga-Hamilton
Cnty. Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008)). The abuse of discretion standard
of review does not immunize a lower court’s decision from meaningful appellate
scrutiny, however, as discretionary decisions “require a conscientious judgment,
consistent with the facts, that takes into account the applicable law.” White v. Beeks, 469
S.W.3d 517, 527 (Tenn. 2015).
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Analysis
A.
As an initial matter, we note that Employer cites Tennessee Code Annotated
section 50-6-217(a)(3) (repealed 2017) in support of its position on appeal. Section 50-6-
217(a)(3) authorized us to reverse or modify a trial court’s decision if the rights of a party
were prejudiced because the findings of the trial judge were “not supported by evidence
that is both substantial and material in the light of the entire record.” However, as we
have noted on numerous occasions, this code section was repealed effective May 9, 2017,
and is no longer applicable.1
B.
Turning to the merits of this appeal, Employer argues that because the doctor it
chose to perform the first evaluation will retire shortly before Employee’s recommended
six-month follow-up, it is reasonable to compel Employee to undergo another
examination performed by a different physician now. Thus, according to Employer, the
trial court erred in (1) “refusing to allow Employer to obtain an independent medical
evaluation (IME) regarding diagnosis, degree of impairment, and causation when the
only impairment rating that has been provided is from the authorized treating physician”;
and (2) “finding that Employer’s request for an IME was not reasonable at this time.”
We conclude the trial court did not abuse its discretion in either respect.
With regard to Employer’s first argument, Employer appears to be overlooking a
crucial point: it was allowed to obtain an independent medical evaluation. That is
precisely what Dr. Fisher provided. While Employer may have been dissatisfied with Dr.
1 See Travis v. Carter Express, Inc., No. 2018-03-0237, 2018 TN Wrk. Comp. App. Bd. LEXIS 67, at *6
n.1 (Tenn. Workers’ Comp. App. Bd. Dec. 21, 2018); Miller v. Logan’s Roadhouse, Inc., No. 2018-06-
0225, 2018 TN Wrk. Comp. App. Bd. LEXIS 59, at *7 (Tenn. Workers’ Comp. App. Bd. Nov. 15, 2018);
Bullard v. Facilities Performance Grp., No. 2017-08-1053, 2018 TN Wrk. Comp. App. Bd. LEXIS 37, at
*5 (Tenn. Workers’ Comp. App. Bd. Aug. 7, 2018); Ledford v. Mid Georgia Courier, Inc., No. 2017-01-
0740, 2018 TN Wrk. Comp. App. Bd. LEXIS 28, at *4 (Tenn. Workers’ Comp. App. Bd. June 4, 2018);
Duignan v. Stowers Machinery Corp., No. 2017-03-0080, 2018 TN Wrk. Comp. App. Bd. LEXIS 25, at
*8-9 (Tenn. Workers’ Comp. App. Bd. May 29, 2018); Ogden v. McMinnville Tool & Die, Inc., No.
2016-05-1093, 2018 TN Wrk. Comp. App. Bd. LEXIS 14, at *9-10 (Tenn. Workers’ Comp. App. Bd.
May 7, 2018); Edwards v. Fred’s Pharmacy, No. 2017-06-0526, 2018 TN Wrk. Comp. App. Bd. LEXIS
9, at *5-6 (Tenn. Workers’ Comp. App. Bd. Feb. 14, 2018); Bowlin v. Servall, LLC, No. 2017-07-0224,
2018 TN Wrk. Comp. App. Bd. LEXIS 6, at *6-7 (Tenn. Workers’ Comp. App. Bd. Feb. 8, 2018);
Thompson v. Comcast Corp., No. 2017-05-0639, 2018 TN Wrk. Comp. App. Bd. LEXIS 1, at *12-13
(Tenn. Workers’ Comp. App. Bd. Jan. 30, 2018); Baker v. Electrolux, No. 2017-06-0070, 2017 TN Wrk.
Comp. App. Bd. LEXIS 65, at *5-6 (Tenn. Workers’ Comp. App. Bd. Oct. 20, 2017); Butler v. AAA
Cooper Transportation, No. 2016-07-0459, 2017 TN Wrk. Comp. App. Bd. LEXIS 54, at *5-6 (Tenn.
Workers’ Comp. App. Bd. Sept. 12, 2017); Glasgow v. 31-W Insulation Co., Inc., No. 2017-05-0225,
2017 TN Wrk. Comp. App. Bd. LEXIS 51, at *11-12 (Tenn. Workers’ Comp. App. Bd. Sept. 6, 2017).
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Fisher’s opinion, Employer was not prevented from obtaining such an opinion. What
Employer seeks here, and what it essentially argues the law protects, is a third opinion.
Employer relies on Tennessee Code Annotated section 50-6-204(d)(1) (2018), which
states that the “injured employee must submit to examination by the employer’s
physician at all reasonable times if requested to do so by the employer.” As we have
pointed out before, the “rule has developed that ‘physical examinations requested
pursuant to Tennessee Code Annotated section 50-6-204(d)(1) generally should be
granted.’” King v. Big Binder Express, LLC, No. 2016-07-0378, 2016 TN Wrk. Comp.
App. Bd. LEXIS 92, at *9 (Tenn. Workers’ Comp. App. Bd. Dec. 7, 2016) (quoting
Perry, 2006 Tenn. LEXIS 448, at *7). However, we have also observed that “an
employer’s right to an examination of an employee pursuant to section 50-6-204(d)(1) by
a physician of the employer’s choosing is not without limits.” Id.
In order to compel an employee to submit to an examination by a physician of the
employer’s choice, “the employer’s request [must] be made at a ‘reasonable
time[]’ and ‘be reasonable, as a whole, in light of the surrounding circumstances.’” Id. at
*11 (citation omitted). Moreover, “[r]easonableness in ‘each case must be determined
upon all the particular facts of that particular case.’” Id. “The statute does not require
repeated examinations be conducted because the employer is displeased with the results.”
Cross v. Norrod Builders, Inc., No. M2005-00743-WC-R3-CV, 2006 Tenn. LEXIS 855,
at *9 (Tenn. Workers’ Comp. Panel Apr. 11, 2006); see also Perry, 2006 Tenn. LEXIS
448 (affirming the trial court’s conclusion that, where the employee had been seen by one
of the employer’s physicians, she was not required to see another).
In this case, the trial court concluded Employer’s request was unreasonable, and
we find no abuse of discretion in that finding. Employer, after learning Employee had
been placed at maximum medical improvement with an impairment rating, requested an
examination by a physician of its choice. Employee agreed, and she was seen by Dr.
Fisher. Employer, upon receiving that physician’s report, then sought to obtain another
opinion, which the trial court found was unreasonable.
Employer argues that, because Dr. Fisher is planning to retire, it is necessary for
another physician to examine Employee since Dr. Fisher will be unavailable for
Employee’s follow-up appointment. However, Dr. Fisher did not state he would be
unavailable. Rather, he stated that if he was going to see her, it would need to be before
he retired. While that date is approximately one month sooner than the recommended
follow-up date, Dr. Fisher indicated his willingness to see Employee again. And while
Dr. Fisher indicated his intent to retire, he may decide to continue practicing, a point not
lost on the trial judge who noted Employer’s request was premature. Moreover,
Employer has reasonable opportunities to depose Dr. Fisher or obtain his expert opinions
in another admissible form, and there is no indication in this record it cannot do so either
before or after his planned retirement date.
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Given the circumstances presented, we cannot conclude the trial court abused its
discretion. Employer has not established that its desire for a successive opinion is
reasonable at this time. After six months have elapsed, if Employee cannot see Dr. Fisher
and does not wish to attend an examination with another physician, Employer may ask
the trial court to revisit the issue.
Conclusion
For the foregoing reasons, we hold that the trial court did not abuse its discretion
in denying Employer’s request for another opinion. Accordingly, the trial court’s
decision is affirmed, and the case is remanded.
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