William H. Mansell v. Bridgestone Firestone North American Tire, LLC , 2013 Tenn. LEXIS 645 ( 2013 )

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
May 1, 2013 Session Heard at Knoxville
WILLIAM H. MANSELL v. BRIDGESTONE FIRESTONE NORTH
AMERICAN TIRE, LLC ET AL.
Direct Appeal from the Circuit Court for Smith County
No. 2010CV36 John D. Wootten, Jr., Judge
No. M2012-02394-WC-R3-WC - Filed August 20, 2013
After a benefit review conference in the Department of Labor and Workforce Development
failed to produce a settlement, the employee filed suit for workers’ compensation benefits.
Because the suit had already been filed, the trial court denied a request by the employer for
an independent medical examination pursuant to the medical impairment rating (“MIR”)
process in Tennessee Code Annotated section 50-6-204(d)(5) (2008 & Supp. 2012). After
hearing all other proof relating to the claim, the trial court awarded compensation to the
employee and questioned the constitutionality of the MIR process. The employer appealed;
the Attorney General filed a brief as amicus curiae; and this Court vacated the judgment and
remanded the cause for additional proceedings. On remand, the Attorney General was added
as a defendant to address the constitutional issue. The trial court considered additional
evidence, which included an MIR report by an independent medical examiner, and ruled that
section 50-6-204(d)(5), which requires our courts to consider the opinion of an independent
medical examiner appointed under that section as presumptively accurate, is an
unconstitutional infringement upon the powers of the judiciary. In the alternative, the trial
court held that the statutory presumption of the accuracy of the report, if compliant with
constitutional principles, was overcome by the other medical evidence, and that the employee
was entitled to a 10% permanent impairment rating rather than the 7% rating in the MIR
report. In this appeal, the employer and the Attorney General argue that the statute meets
constitutional standards. We hold that the MIR process does not violate constitutional
principles, and we further find that the evidence did not clearly and convincingly rebut the
statutory presumption. The judgment of the trial court is, therefore, reversed in part, and
affirmed and modified in part. The cause is remanded for additional proceedings consistent
with this opinion.
Tenn. Sup. Ct. R. 51, § 2; Judgment of the Trial Court Reversed in Part; Affirmed
and Modified in Part; Case Remanded to the Circuit Court for Smith County
G ARY R. W ADE, C.J., delivered the opinion of the Court, in which J ANICE M. H OLDER,
C ORNELIA A. C LARK, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.
Daniel C. Todd, Nashville, Tennessee, for the appellant, Bridgestone Firestone North
American Tire, LLC.
Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;
and Alexander S. Reiger, Assistant Attorney General, for the appellant, State of Tennessee.
William J. Butler and E. Guy Holliman, Lafayette, Tennessee; and Debbie C. Holliman,
Carthage, Tennessee, for the appellee, William H. Mansell.
OPINION
I. Facts and Procedural History 1
In June of 2008, William Mansell (the “Employee”) suffered an injury to his right
shoulder while working for Bridgestone Firestone North American Tire, LLC (the
“Employer”). Dr. Sean Kaminsky, an orthopedic surgeon, treated the Employee and, after
evaluating his condition, assigned an impairment rating of 3% to the body as a whole. Dr.
Robert Landsberg, also an orthopedic surgeon, performed an independent medical evaluation
and 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. Prior to trial, the Employer requested the appointment of an
independent medical examiner pursuant to the MIR process set out in Tennessee Code
Annotated section 50-6-204(d)(5) (2008 & Supp. 2012), which provides, in pertinent part:
When a dispute as to the degree of medical impairment exists, either party may
request an independent medical examiner from the [DOL’s] registry. . . . 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.
1
After our initial remand of this case, the facts and legal arguments pertinent to this appeal were
developed at a hearing on July 27, 2012, in the Circuit Court for Smith County. By way of background,
however, we have included the underlying facts and procedural history of the entire case, as set forth in our
memorandum opinion in the first appeal. See Mansell v. Bridgestone Firestone N. Am. Tire, LLC, No.
M2010-02093-SC-R3-WC, 2011 WL 3758562, at *1-3 (Tenn. Aug. 25, 2011) (per curiam).
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(Emphasis added.)2 The Employee moved to quash the Employer’s request, arguing that the
Employer had waived its right to seek an independent medical examination by failing to do
so during the Benefit Review Conference in the DOL.
The trial court granted the motion by the Employee, holding that the DOL had
“relinquished jurisdiction” when the Benefit Review Conference reached an impasse, and
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 [c]ourt has acquired jurisdiction over the case.” The
Employer sought permission to file an interlocutory appeal pursuant to Tennessee Rule of
Appellate Procedure 9. When the trial court denied the request, the Employer filed an
application for an extraordinary appeal under Tennessee Rule of Appellate Procedure 10.
On July 27, 2010, this Court denied the application, and the case proceeded to trial without
an MIR evaluation or report.
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 (“AMA
Guides”), and awarded benefits to the Employee, including future medical expenses and
attorney’s fees. The trial court adopted the 10% impairment rating assigned by Dr.
Landsberg, finding that it “more accurately follow[ed] the mandates of the AMA Guides, 6th
Edition,” and, therefore, was entitled to more weight than Dr. Kaminsky’s impairment rating
of 3%. Applying the statutory one-and-one-half times multiplier, see Tenn. Code Ann. § 50-
6-241(d)(1)(A) (2008 & Supp. 2012), the trial court determined that the Employee sustained
a 15% permanent partial disability and, therefore, was entitled to sixty weeks of benefits. As
to the Employer’s earlier request to appoint an independent medical examiner pursuant to the
MIR process, the trial court observed that applying section 50-6-204(d)(5) after the filing of
2
The MIR process has been further described as follows:
The statutes and rules governing MIR reports reflect that the General Assembly’s purpose
was to provide an efficient method for presenting neutral, objective opinions regarding an
employee’s impairment to aid trial courts when the parties disagree regarding the extent of
the impairment. If the requirements in [Tennessee Code Annotated section 50-6-204(d)(5)]
and the regulations promulgated thereto are met, the report becomes a self-authenticating
official document certified by the [DOL]. The document itself gives rise to a rebuttable
presumption that the impairment rating in the document is “the accurate impairment rating.”
Williams v. United Parcel Serv., 328 S.W.3d 497, 502 (Tenn. Workers’ Comp. Panel 2010) (footnote
omitted) (quoting Tenn. Code Ann. § 50-6-204(d)(5)).
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suit would serve as an intrusion upon the court’s judicial powers to make specific findings
of fact as to the applicable impairment rating.
This Court granted review of the appeal by the Employer and, in a memorandum
opinion, vacated the judgment of the trial court. Mansell, 2011 WL 3758562, at *5.
Although the Attorney General filed a brief as amicus curiae in the initial appeal, we
concluded that the issue of the constitutionality of the MIR process contained in section 50-6-
204(d)(5) “was not properly presented, argued, or litigated before the trial court.” Id. at *3.
Observing that the issue of whether the MIR process applies only to administrative
proceedings in the DOL was “inextricably intertwined with the constitutional question,” we
also vacated the trial court’s order granting the Employee’s motion to quash. Id. at *4. In
light of our remand to the trial court for consideration of the constitutional issue, we
pretermitted consideration of the Employee’s claim that the Employer had waived its right
to seek the opinion of an independent medical examiner by failing to seek the remedy during
the DOL proceedings. Id. at *4 & n.3. Our order further provided that “[s]hould 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.” Id. at *5 (citing Tenn. Sup. Ct. R. 51, § 2).
On remand, the Employee, without waiving any constitutional challenges to the MIR
process, agreed to submit to an independent medical examination by Dr. H. James Weisman,
an orthopedic surgeon listed on the DOL’s registry. Dr. Weisman completed his MIR report
pursuant to section 50-6-204(d)(5) and the Sixth Edition of the AMA Guides, assigning a 7%
impairment rating as a result of the work-related injury. At the hearing on July 27, 2012, the
parties submitted the MIR report by Dr. Weisman, and the Employee presented the
deposition testimony of J. Edward Blaisdell, the MIR Program Coordinator at the DOL. No
other evidence was presented by either party. The Employee, the Employer, and the Attorney
General then presented arguments as to the constitutionality of section 50-6-204(d)(5) and
related portions of the statute. Based upon this proof and the testimony in the initial
proceeding, the trial court concluded that section 50-6-204(d)(5), if not limited to use by the
DOL, is “an unconstitutional infringement on th[e] Court’s powers to use the Rules of
Evidence to establish or to approve the qualifications of experts, to weigh any and all
relevant evidence, to compare through the crucible of cross-examination or even direct
examination of any expert, the bias, prejudice or the like.” The trial court also concluded,
in the alternative, that even if section 50-6-204(d)(5) meets constitutional standards, the
testimony of Dr. Landsberg from the original trial clearly and convincingly rebutted the
subsequent MIR report of Dr. Weisman. In consequence, the trial court reinstated its original
judgment, granting benefits to the Employee based upon the 10% impairment rating. The
Employer has appealed, and, pursuant to our memorandum opinion in the first appeal, we
again granted direct review.
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II. Standard of Review
A trial court’s findings of fact in a workers’ compensation case are reviewed de novo
accompanied by a presumption of correctness of the findings, unless the preponderance of
the evidence is otherwise. Tenn. Code Ann. § 50-6-225(e)(2) (2008 & Supp. 2012); see also
Tenn. R. App. P. 13(d). When credibility and the weight to be given testimony are involved,
considerable deference is given to the trial court when the trial judge had the opportunity to
observe the witnesses’ demeanor and to hear in-court testimony. Madden v. Holland Grp.
of Tenn., Inc., 277 S.W.3d 896, 898 (Tenn. 2009). “When the issues involve expert medical
testimony that is contained in the record by deposition, determination of the weight and
credibility of the evidence necessarily must be drawn from the contents of the depositions,
and the reviewing court may draw its own conclusions with regard to those issues.” Foreman
v. Automatic Sys., Inc., 272 S.W.3d 560, 571 (Tenn. 2008) (citing Orrick v. Bestway
Trucking, Inc., 184 S.W.3d 211, 216 (Tenn. 2006)).
The interpretation and application of Tennessee’s Workers’ Compensation Law are
questions of law that are reviewed de novo with no presumption of correctness. Nichols v.
Jack Cooper Transp. Co., 318 S.W.3d 354, 359 (Tenn. 2010). Issues of constitutional
interpretation are also questions of law, which the Court reviews de novo without any
presumption of correctness given to the legal conclusions of the courts below. Waters v.
Farr, 291 S.W.3d 873, 882 (Tenn. 2009) (citing Colonial Pipeline Co. v. Morgan, 263
S.W.3d 827, 836 (Tenn. 2008)). The Court must uphold the constitutionality of a statute
wherever possible, beginning with the presumption that the statute is constitutional. State
v. Pickett, 211 S.W.3d 696, 700 (Tenn. 2007).
III. Analysis
The Employer contends that the trial court erred by finding Tennessee Code
Annotated section 50-6-204(d)(5) unconstitutional as a violation of the separation of powers
doctrine, and, in the alternative, by reinstating its original judgment granting the Employee
benefits based upon the 10% impairment rating assigned by Dr. Landsberg without giving
proper consideration to the presumptively accurate rating of 7%. The Attorney General has
also filed a brief in support of the constitutionality of section 50-6-204(d)(5), asserting that
the trial court erred because the MIR process does not violate the principles of separation of
powers or due process. The Employee argues primarily that the statute is an unconstitutional
infringement on the powers of the judiciary, but that, in any event, the trial court properly
concluded that the presumption of accuracy of Dr. Weisman’s MIR report was rebutted by
clear and convincing evidence.
A. Statutory Interpretation
A preliminary issue is whether the General Assembly intended for Tennessee Code
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Annotated section 50-6-204(d)(5) to be interpreted so as to limit the MIR report to
consideration by the DOL. The trial court, in the initial proceeding, declined to appoint an
MIR physician at the Employer’s request primarily because the presumptive accuracy of the
report would intrude upon its judicial functions. The Attorney General intervened in the
Employer’s first appeal, maintaining 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.” Mansell, 2011 WL 3758562, at *3.
Our consideration of a question of statutory construction is without any deference to
the trial court. See In re Estate of Tanner, 295 S.W.3d 610, 613 (Tenn. 2009). When
addressing the interpretation of a statute, well-defined precepts apply. Colonial Pipeline, 263
S.W.3d at 836. “Our primary objective . . . is to carry out the intent of the legislature without
unduly broadening or restricting the statute.” Nichols, 318 S.W.3d at 359-60. When a statute
is clear, we apply the plain meaning without complicating the task, and simply enforce the
written language. Abels ex rel. Hunt v. Genie Indus., Inc., 202 S.W.3d 99, 101-02 (Tenn.
2006) (quoting Calaway ex rel. Calaway v. Schucker, 193 S.W.3d 509, 516 (Tenn. 2005)).
When a statute is ambiguous, however, we may refer to the broader statutory scheme, the
history of the legislation, or other sources to discern its meaning. Colonial Pipeline, 263
S.W.3d at 836. Further, courts must presume that our General Assembly was aware of its
prior enactments and knew the state of the law at the time the legislation was passed. Owens
v. State, 908 S.W.2d 923, 926 (Tenn. 1995).
The MIR program was created in 2005 to “establish[] a resource to resolve disputes
regarding the degree of permanent medical impairment ratings for injuries or occupational
diseases to which the [Workers’ Compensation Law] is applicable.” Tenn. Comp. R. &
Regs. 0800-02-20-.02(1) (2006). Tennessee Code Annotated section 50-6-204(d)(5) was
designed to permit either the employee or the employer to request the appointment of an
independent medical examiner from the MIR registry “[w]hen a dispute as to the degree of
medical impairment exists.” Tenn. Code Ann. § 50-6-204(d)(5); see also Tenn. Comp. R.
& Regs. 0800-02-20-.02(2) (“The MIR Registry is available to any party with a dispute of
the degree of medical impairment rating . . . .”). By the terms of the legislation, the parties
may mutually agree upon the selection of an MIR physician from the registry or may engage
in an established process of elimination to reach an agreement as to the selected physician.
See Tenn. Code Ann. § 50-6-204(d)(5).
In the memorandum opinion issued pursuant to the initial appeal, we recognized that
a dispute as to the degree of medical impairment did exist because “two (2) different
physicians have issued differing permanent medical impairment ratings in compliance with
the [Workers’ Compensation Law] and the parties disagree as to those permanent impairment
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ratings.” Mansell, 2011 WL 3758562, at *4 (citing Tenn. Comp. R. & Regs. 0800-02-20-
.01(5) (2006)). Once a dispute as to the degree of medical impairment exists, nothing in the
MIR statute either limits its application to the DOL or extends its application to the trial
court. Thus, in the absence of a plain directive as to the extent of the application of the MIR
process, the broader statutory scheme, the history of the legislation, and other considerations
may serve as interpretive guides. Estate of French v. Stratford House, 333 S.W.3d 546, 554
(Tenn. 2011) (citing Colonial Pipeline, 263 S.W.3d at 836).
By the enactment of the Workers’ Compensation Reform Act of 2004, the General
Assembly required employees and employers to submit to a Benefit Review Conference in
the DOL before filing suit. See Tenn. Code Ann. § 50-6-203(a)(1) (2008) (“No claim for
compensation under [the Workers’ Compensation Law] shall be filed with a court . . . until
the parties have exhausted the benefit review conference process . . . .”); id. § 50-6-225(a)(1)
(2008 & Supp. 2012) (“[I]n case of a dispute over or failure to agree upon compensation
under [the Workers’ Compensation Law] . . . the parties shall first submit the dispute to the
benefit review conference process . . . .”); id. § 50-6-239(b) (2008) (“The parties to a dispute
shall attend and participate in a benefit review conference . . . as a condition precedent to
filing a complaint with a court . . . .”); Chapman v. DaVita, Inc., 380 S.W.3d 710, 714 (Tenn.
2012) (“The use of the word ‘shall’ in sections 50-6-203(a) and 50-6-225(a)(1) clearly
indicates the legislature’s intention that exhaustion of the benefit review conference process
is a mandatory prerequisite to filing a cause of action.”). It is only when the parties cannot
reach an agreement at the Benefit Review Conference that they may resort to the courts.
Lynch v. City of Jellico, 205 S.W.3d 384, 391 (Tenn. 2006); West v. Vought Aircraft Indus.,
Inc., 256 S.W.3d 618, 622 (Tenn. 2008) (“[T]he Workers’ Compensation Law now provides
a definitive moment when a complaint can be filed—the moment the benefit review
conference is concluded without a settlement.”).
One year after the Workers’ Compensation Reform Act of 2004, the General
Assembly passed the legislation establishing the MIR process. Act of June 15, 2004, ch. 962,
§ 24, 2004 Tenn. Pub. Acts 2346, 2361 (codified at Tenn. Code Ann. § 50-6-204(d)(5)
(2005)). As indicated, when interpreting statutory terms, courts must presume that the
General Assembly, when making new law, was fully aware of its prior enactments. Owens,
908 S.W.2d at 926. Tennessee Code Annotated section 50-6-204(d)(5) and the related
statutory provisions include broad language. The General Assembly could have easily
included a provision requiring the appointment of an MIR physician prior to filing suit,
similar to at least three provisions adopted in the Workers’ Compensation Reform Act of
2004, all of which required a Benefit Review Conference as a condition precedent to the
filing of suit. In the absence of such language restricting the MIR process to the DOL,
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section 50-6-204(d)(5) should generally apply.3 We hold, therefore, that when a dispute as
to the degree of medical impairment arises, whether in the DOL or in the trial court, either
the employee or the employer may seek the opinion of an MIR physician pursuant to section
50-6-204(d)(5).
B. Constitutionality of Section 50-6-204(d)(5) and the MIR Process
The Employee contends that section 50-6-204(d)(5), when applied to the proceedings
in the trial court, is unconstitutional for two reasons: (1) the MIR statute violates the
separation of powers doctrine, improperly infringing upon the trial court’s authority to find
the facts and to make evidentiary rulings on relevance, expert testimony, and witness
credibility; and (2) the statute violates principles of due process because the presumption
given to the MIR physician’s opinion is “in most instances” irrebuttable, denying an
employee of a meaningful opportunity to be heard on the issue of the medical impairment
rating.
1. Separation of Powers
The Tennessee Constitution includes two explicit provisions establishing the
separation of powers among the three branches of government. Article II, section 1 provides,
“The powers of the Government shall be divided into three distinct departments: the
Legislative, Executive, and Judicial.” Tenn. Const. art. II, § 1. Article II, section 2
elaborates, “No person or persons belonging to one of these departments shall exercise any
of the powers properly belonging to either of the others, except in the cases herein directed
or permitted.” Id. art. II, § 2. While there are no precise lines of demarcation in the
respective roles of our three branches of government, the traditional rule is that “the
legislative [branch] [ha]s the authority to make, order, and repeal [the laws], the executive
. . . to administer and enforce, and the judicial . . . to interpret and apply.” Underwood v.
State, 529 S.W.2d 45, 47 (Tenn. 1975) (quoting Richardson v. Young, 125 S.W. 664, 668
(Tenn. 1910)). By the terms of our constitution, “[o]nly the Supreme Court has the inherent
3
In the eight years since the MIR program was established, the presumption of accuracy given an
MIR report has consistently been applied in the trial courts. We have been unable to find any decision of
this Court, or of any Special Workers’ Compensation Appeals Panel, in which the MIR process was held to
be limited to the administrative proceedings in the DOL. Instead, trial courts have consistently accepted MIR
reports, which have consistently been afforded a presumption of accuracy on the issue of medical
impairment. See, e.g., Bean v. Tepro, Inc., No. M2010-00264-WC-R3-WC, 2011 WL 686449, at *8 (Tenn.
Workers’ Comp. Panel Feb. 28, 2011) (modifying award of compensation to adopt impairment rating by MIR
physician, which should have received a presumption of accuracy in the trial court); Tuten v. Johnson
Controls, Inc., No. W2009-1426-SC-WCM-WC, 2010 WL 3363609, at *4 (Tenn. Workers’ Comp. Panel
Aug. 25, 2010) (rejecting employee’s claim that trial court erred by adopting impairment rating of MIR
physician); Transp. Serv., LLC v. Allen, No. E2009-01268-WC-R3-WC, 2010 WL 2943147, at *8 (Tenn.
Workers’ Comp. Panel July 26, 2010) (same).
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power to promulgate rules governing the practice and procedure of the courts of this state,
and this inherent power ‘exists by virtue of the [Constitution’s] establishment of a Court and
not by largess of the legislature.’” State v. Mallard, 40 S.W.3d 473, 480-81 (Tenn. 2001)
(citations omitted) (quoting Haynes v. McKenzie Mem’l Hosp., 667 S.W.2d 497, 498 (Tenn.
Ct. App. 1984)). In this context, this “[C]ourt is supreme in fact as well as in name.” Barger
v. Brock, 535 S.W.2d 337, 341 (Tenn. 1976).
Based upon these principles, but taking into account considerations of comity among
the three branches of government, this Court has exercised measured restraint by repeatedly
holding that “[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.” Lynch, 205 S.W.3d at 393 (alteration in original)
(quoting Underwood, 529 S.W.2d at 47). “It is only by remembering the limits of the power
confided to the judicial department of the government, and respecting the independence of
the other departments, that the judiciary can maintain its own independence in the proper
sense of the term[.]” State ex rel. Robinson v. Lindsay, 53 S.W. 950, 952 (Tenn. 1899).
In State v. Mallard, 40 S.W.3d at 475, this Court considered the propriety of
legislation that touched upon the constitutional powers reserved exclusively for the judicial
branch. The General Assembly enacted Tennessee Code Annotated section 39-17-424
(1997), which set forth several factors for courts to consider “in addition to all other logically
relevant factors” in “determining whether a particular object is drug paraphernalia as defined
by [Tennessee Code Annotated section] 39-17-402.” One of the enumerated
factors—“[p]rior convictions, if any, of the owner or of anyone in control of the object for
violation of any state or federal law relating to controlled substances”—conflicted with
Tennessee Rule of Evidence 404(b), which generally precludes the admission of evidence
of “other crimes, wrongs, or acts . . . to prove the character of a person in order to show
action in conformity with the character trait.” See Mallard, 40 S.W.3d at 479-80. When the
constitutionality of the statute was challenged as an intrusion upon the powers of the
judiciary, Justice William M. Barker, writing for a unanimous Court, observed that the
judicial branch will consent to rules of procedure or evidence that are promulgated by the
legislature only when they “(1) are reasonable and workable within the framework [of] the
judiciary, and (2) work to supplement the rules already promulgated by the Supreme Court.”
Id. at 481. He emphasized, however, that the Court will do so “purely out of considerations
of inter-branch comity,” explaining that the Court “is not required [to do so] by any principle
of free government.” Id. at 482. “To hold otherwise,” the Court ruled, “would be to
irreparably damage the division of governmental power so essential to the proper
maintenance of our constitutional republic.” Id. Indeed, any legislation designed as a rule
of evidence “must inevitably yield when it seeks to govern the practice and procedure of the
courts.” Id. at 480.
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As to the provision at issue in Mallard, this Court further explained the limitations on
the role of the legislature:
[T]he legislature can have no constitutional authority to enact rules, either of
evidence or otherwise, that strike at the very heart of a court’s exercise of
judicial power. Among these inherent judicial powers are the powers to hear
facts, to decide the issues of fact made by the pleadings, and to decide the
questions of law involved. As an essential corollary to these principles, any
determination of what evidence is relevant, either logically or legally, to a fact
at issue in litigation is a power that is entrusted solely to the care and exercise
of the judiciary. Indeed, a “court’s constitutional function to independently
decide controversies is impaired if it must depend on, or is limited by, another
branch of government in determining and evaluating the facts of the
controversies it must adjudicate.” Consequently, any legislative enactment that
purports to remove the discretion of a trial judge in making determinations of
logical or legal relevancy impairs the independent operation of the judicial
branch of government, and no such measure can be permitted to stand.
Id. at 483 (citations omitted) (quoting Opinion of the Justices, 688 A.2d 1006, 1016 (N.H.
1997)). Ultimately, this Court, respectful of the presumptive constitutionality of all
legislative acts, chose to interpret the statute as merely supplemental, holding that its terms
applied so long as the “proffered evidence otherwise me[t] all the requirements for
admissibility under the Rules of Evidence.” Id. at 484.4
Shortly after the decision in Mallard, this Court considered a similar challenge in the
workers’ compensation context. In Martin v. Lear Corp., 90 S.W.3d 626 (Tenn. 2002), an
employee sought to introduce the testimony of a physician who had examined him at the
request and expense of his employer, citing as support Tennessee Code Annotated section
50-6-204(f) (1999), which provided that any examining physician whose services are paid
for by the employer may be required to testify. Id. at 630. In response, the employer argued
that the workers’ compensation provision violated the separation of powers provisions, as
interpreted in Mallard, because it impermissibly conflicted with Tennessee Rule of Civil
Procedure 26.02(4)(B), which protects from discovery the opinion of an expert employed as
a consultant rather than a witness for trial. Id. at 630-31. Distinguishing Mallard, the Court
upheld section 50-6-204(f) and ruled that the physician’s testimony was admissible for two
4
Undertaking its duty to construe legislative enactments as constitutional where possible, the Court
upheld Tennessee Code Annotated section 39-17-424, concluding that the statute only suggested, rather than
required, trial courts to consider certain factors as relevant, and thus supplemented, rather than impaired, the
Rules of Evidence. Id. at 483-84.
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primary reasons: first, because section 50-6-204(f) did not “impermissibly conflict with Rule
26.02,” but merely limited its application in certain circumstances—i.e., when an employer
chooses to designate an examining physician as a consulting expert, and, second, and perhaps
more importantly, because “the Workers’ Compensation Law is entirely a creature of
statute[,] . . . [and] the Legislature is the appropriate body to set the policy that governs
workers’ compensation cases.” Id. at 631-32 (citations omitted).
Our deference to the General Assembly in the workers’ compensation context dates
back to the enactment of the Workmen’s Compensation Act in 1919. From the decision in
Scott v. Nashville Bridge Co., 223 S.W. 844, 848, 854 (Tenn. 1920), in which this Court
upheld the constitutionality of the vast majority of the original act and reaffirmed the
legislature’s authority to abolish common law defenses and establish compensation to injured
workers,5 to our ruling in Lynch v. City of Jellico, 205 S.W.3d at 393, in which we held that
the “benefit review process [described in the Workers’ Compensation Reform Act of 2004]
does not frustrate the adjudicative function of the judicial branch,” this Court has consistently
rejected challenges to the workers’ compensation scheme based upon the separation of
powers provisions of the Tennessee Constitution.
In this instance, the Employee makes arguments similar to those advanced in Martin,
contending that the statute creating the MIR process is unconstitutional because it conflicts
with Tennessee Rules of Evidence 702 and 706, which govern the appointment of experts
and the admissibility of their testimony. Rule 702 provides that “[i]f scientific, technical, or
other specialized knowledge will substantially assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion or otherwise.” Tenn.
R. Evid. 702. Rule 706 describes the general circumstances under which a trial court may
qualify and appoint an expert witness of its own selection. See Tenn. R. Evid. 706. The MIR
process, in contrast, requires the Commissioner of the DOL, rather than the trial court, to
establish the qualifications for MIR physicians whose impairment ratings are afforded the
statutory presumption of accuracy. Tenn. Code Ann. § 50-6-204(d)(6). Moreover, when a
dispute as to injury exists, the trial court is prohibited by the MIR statutes from appointing
its own neutral physician to state an opinion as to the degree of medical impairment. Id. §
50-6-204(d)(9).
5
The analysis by the Court in Scott has been criticized for unnecessarily narrowing the scope of
article I, section 17 of the Tennessee Constitution. See William C. Koch, Jr., Reopening Tennessee’s Open
Courts Clause: A Historical Reconsideration of Article I, Section 17 of the Tennessee Constitution, 27 U.
Mem. L. Rev. 333, 411-12 & n.493 (1997). The result of the decision, however, would have been the same
had the Court properly “concluded that the [Workmen’s Compensation] Act’s administrative remedies were
adequate substitutes for the common-law remedies available to injured workers prior to the passage of the
Act.” Id. at 412.
-11-
In our view, these MIR statutes, while placing limitations on the ability of a trial court
to determine the admissibility of expert testimony and to appoint its own expert witness to
give an impairment rating, are not in conflict with the Rules of Evidence. Initially, we see
no reason why a physician who is qualified to be on the MIR registry could not provide an
expert opinion that likewise meets the admissibility requirements of Tennessee Rule of
Evidence 702. The DOL requires MIR physicians to
(a) Possess a license to practice medicine or osteopathy in Tennessee which is
current, active, and unrestricted;
(b) Be board-certified in his/her medical specialty by a board recognized by the
American Board of Medical Specialties, the American Osteopathic Association
or another organization acceptable to the Commissioner;
(c) Have successfully completed a training course, approved by the
Commissioner, dedicated to the proper application of the applicable edition of
the American Medical Association Guides to the Evaluation of Permanent
Impairment . . . in impairment evaluations and furnish satisfactory evidence
thereof; and
(d) Furnish satisfactory proof of carrying the minimum medical malpractice
insurance coverage.
Tenn. Comp. R. & Regs. 0800-02-20-.04(1) (2006). MIR physicians are also subject to peer
review to ensure that proper procedures are followed, Tenn. Comp. R. & Regs. 0800-02-20-
.12(1) (2006), and an MIR physician’s failure to properly apply the AMA Guides in
determining an impairment rating may result in permanent or temporary removal from the
MIR Registry, Tenn. Comp. R. & Regs. 0800-02-20-.13(1)(c) (2006). By comparison, trial
courts determining whether an expert is qualified to testify pursuant to Rule 702 may
consider
(1) whether scientific evidence has been tested and the methodology with
which it has been tested; (2) whether the evidence has been subjected to peer
review or publication; (3) whether a potential rate of error is known; (4)
whether . . . the evidence is generally accepted in the scientific community;
and (5) whether the expert’s research in the field has been conducted
independent of litigation.
McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 265 (Tenn. 1997). To the extent the
McDaniel factors are not already implicated by the DOL regulations, a trial court is always
free to consider those factors when evaluating an MIR report to determine if the presumption
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of accuracy is overcome by clear and convincing evidence.6 Moreover, the parties are
permitted to depose the MIR physician in any case where an MIR report is submitted, which
provides an employee, an employer, and the trial court with ample opportunity to cross-
examine or otherwise question the MIR physician as to his or her medical qualifications,
training, expertise, methodology, and the like.
A second limitation imposed by the MIR statutes is that a trial court may not appoint
its own expert witnesses under Tennessee Rule of Evidence 706 to assist in the establishment
of the degree of medical impairment. See Tenn. Code Ann. § 50-6-204(d)(9). On all other
issues that may arise within the MIR process, however, “the court may, . . . on its own
motion, appoint a neutral physician of good standing and ability to make an examination of
the injured person and report the physician’s findings to the court.” Id. In our assessment,
this statutory limitation, which is specifically tailored to expedite resolution of the degree of
medical impairment, bears little difference from the statutory provision at issue in Martin.
See Martin, 90 S.W.3d at 631-32 (holding that specific workers’ compensation statute
allowing admission of certain expert testimony did not violate separation of powers because
it merely limited the application of a more general procedural rule intended to exclude such
testimony). In workers’ compensation cases, the general provisions of the Tennessee Rules
of Evidence and the Tennessee Rules of Civil Procedure may, under some circumstances, be
subject to the more specific provisions of the Workers’ Compensation Law. Id. at 630; see
also Mallard, 40 S.W.3d at 485 (acknowledging that a “specific piece of evidence admitted
in a specific context for a specific purpose” may prevail over the Tennessee Rules of
Evidence). Tennessee Code Annotated section 50-6-204(d)(9) allows the trial court to call
its own expert witnesses on all issues that may arise within the MIR process, except for the
sole purpose of obtaining yet another impairment rating. In consequence, this specific
provision within the MIR statutes prevails over the general evidentiary rule in this instance.
In summary, because the MIR statutes are specifically tailored to certain, limited
circumstances within the overall workers’ compensation scheme, we cannot conclude that
the MIR process “strike[s] at the heart of the court’s exercise of judicial power.” Martin, 90
S.W.3d at 631 (citing Mallard, 40 S.W.3d at 483). As held in Martin, “the statute at issue
. . . does not impermissibly conflict with [Tennessee Rules of Evidence 702 or 706] because
it merely limits the application of [the Rules] in certain circumstances.” Id. Moreover,
insofar as the Employee’s arguments relate to the weight to be given an MIR physician’s
6
Overcoming the statutory presumption of accuracy is a matter of the weight, rather than the
admissibility, of the MIR report. Nevertheless, the ability of the trial court to apply the traditional McDaniel
factors in this context, as conceded by the Attorney General, demonstrates why the MIR process does not
dictate the ultimate judicial determination of the court, even if the court’s preliminary “gatekeeper” function
is somewhat restricted.
-13-
impairment rating, the statutory presumption in section 50-6-204(d)(5) applies only to the
opinion of an MIR physician as to the degree of medical impairment, Courier Printing Co.
v. Sims ex rel. Bly, No. M2010-01279-WC-R3-WC, 2011 WL 2936350, at *6 (Tenn.
Workers’ Comp. Panel July 15, 2011) (“Opinions stated by [an MIR] physician on matters
other than the degree of impairment do not carry the presumption of correctness afforded by
the statute to the impairment rating.”), and nothing prevents trial courts from admitting,
considering, and weighing all relevant evidence that may be submitted by the employee or
the employer in any effort to rebut the statutory presumption, see Smith v. Nestle Waters N.
Am., Inc., No. M2011-00908-WC-R3-WC, 2012 WL 3628779, at *3 (Tenn. Workers’ Comp.
Panel Aug. 23, 2012) (holding that trial court properly admitted opinion of physician on
issues other than impairment rating because the evidence was relevant and competent proof
of the employee’s injury); see also Courier Printing, 2011 WL 2936350, at *6 (holding that
evidence as to causation of injury was admissible as relevant under the Tennessee Rules of
Evidence, even if somewhat inconsistent with the statutory and regulatory scheme of the MIR
process).
2. Due Process
The Employee also challenges the constitutionality of section 50-6-204(d)(5) based
upon the Due Process Clauses contained in the Fifth and Fourteenth Amendments to the
United States Constitution, and the “law of the land” clause contained in article I, section 8
of the Tennessee Constitution. The Fifth and Fourteenth Amendments prohibit the federal
and state governments from depriving any person “of life, liberty, or property, without due
process of law.” U.S. Const. amend. V; id. amend. XIV, § 1. Article I, section 8 of the
Tennessee Constitution provides “[t]hat no man shall be taken or imprisoned, or disseized
of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed or
deprived of his life, liberty or property, but by the judgment of his peers or the law of the
land.” Tenn. Const. art. I, § 8. “The phrase, ‘the law of the land,’ used in this section of our
State Constitution, and the phrase, ‘due process of law,’ used in the [Fifth and Fourteenth
Amendments to the United States Constitution], are synonymous phrases meaning one and
the same thing.” State v. Hale, 840 S.W.2d 307, 312 (Tenn. 1992) (citing Dearborne v. State,
575 S.W.2d 259 (Tenn. 1978)). In consequence, while this Court is the final arbiter of the
Tennessee Constitution and is always free to expand the minimum level of protection
mandated by the federal constitution, Burford v. State, 845 S.W.2d 204, 207 (Tenn. 1992)
(citing Doe v. Norris, 751 S.W.2d 834, 838 (Tenn. 1988)), article I, section 8 has consistently
been interpreted as conferring identical due process protections as its federal counterparts,
id. (citing Daugherty v. State, 393 S.W.2d 739 (Tenn. 1965)). Under both the state and
federal constitutions, due process encompasses procedural and substantive protections. See
-14-
Lynch, 205 S.W.3d at 391.7
a. Procedural Due Process
“The most basic principle underpinning procedural due process is that individuals be
given an opportunity to have their legal claims heard at a meaningful time and in a
meaningful manner.” Lynch, 205 S.W.3d at 391; see also Heyne, 380 S.W.3d at 732 (“The
fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time
and in a meaningful manner.’” (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976))).
In determining whether this requirement has been met, we must consider three factors
established by the United States Supreme Court:
First, the private interest that will be affected by the official action; second, the
risk of an erroneous deprivation of such interest through the procedures used,
and the probable value, if any, of additional or substitute procedural
safeguards; and finally, the Government’s interest, including the function
involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.
Heyne, 380 S.W.3d at 732 (quoting Mathews, 424 U.S. at 335). Within this framework, we
are mindful that “due process is flexible and calls for such procedural protections as the
particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972).
In this instance, we must determine whether the MIR process established in Tennessee
Code Annotated section 50-6-204(d)(5) deprives employees seeking workers’ compensation
benefits of the opportunity to have their claims heard at a meaningful time and in a
meaningful manner. The private interest at stake is, of course, the right of a worker who is
injured on the job to recover workers’ compensation benefits. The state’s interest in our
workers’ compensation system generally, and the MIR process more specifically, is to
maintain a comprehensive, cost-efficient, and expedient process for reviewing the claims of
injured workers. See Williams, 328 S.W.3d at 502 (“[T]he General Assembly’s purpose [in
creating the MIR process] was to provide an efficient method for presenting neutral,
objective opinions regarding an employee’s impairment to aid trial courts when the parties
disagree regarding the extent of the impairment.”). The procedural due process issue is,
7
Because the Workers’ Compensation Law is civil in nature, the application of Tennessee Code
Annotated section 50-6-204(d)(5) does not trigger the constitutional safeguards that accompany criminal
proceedings. See Waters v. Farr, 291 S.W.3d 873, 902 (Tenn. 2009); see also Heyne v. Metro. Nashville Bd.
of Public Educ., 380 S.W.3d 715, 735 (Tenn. 2012) (“Due process does not require all the structural
safeguards in administrative and civil adjudicatory proceedings that we have come to expect in criminal
proceedings.”).
-15-
therefore, whether injured workers are at risk of being deprived of their entitlement to
workers’ compensation benefits because the MIR statute essentially fixes the medical
impairment rating and precludes trial courts from properly evaluating other medical evidence.
As stated, we have previously upheld the constitutionality of our workers’
compensation system against similar attacks. See, e.g., Lynch, 205 S.W.3d at 392 (holding
that the mandatory benefit review conference requirement does not deprive injured workers
of their right to be heard because they may file suit and have their rights judicially
determined upon exhausting the benefit review process). The Employee contends, however,
that once a litigant has completed the Benefit Review Conference and files suit, section 50-6-
204(d)(5) violates procedural due process by giving an MIR physician “in most instances an
irrebuttable or conclusive presumption” of accuracy, thereby preventing a meaningful
opportunity to be heard specifically on the issue of medical impairment. The Employee
submits that the presumption is irrebuttable in practice because the evidentiary burden of
clear and convincing evidence can never be overcome, and, in consequence, effectively
denies the opportunity for employees to present competent expert proof that might otherwise
be considered, weighed, and determined by the courts. He further contends that even though
either of the parties is permitted to introduce other proof contradictory to the impairment
rating by the MIR physician, this is not a “meaningful opportunity to be heard” because the
trial court, as a practical matter, will only consider the presumptively accurate opinion.
Initially, the Employee has conceded, as he must, that the presumption created in
section 50-6-204(d)(5) is not absolute, and, by its own terms, is rebuttable by clear and
convincing evidence. See Tenn. Code Ann. § 50-6-204(d)(5) (“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 at least three recent rulings by our Special Workers’
Compensation Appeals Panels the employee has successfully rebutted the presumption of
accuracy of an MIR impairment rating by the presentation of clear and convincing evidence
to the contrary. See Smith v. Elec. Research & Mfg. Coop., Inc., No.
W2012-006560-WC-R3-WC, 2013 WL 683192, at *5 (Tenn. Workers’ Comp. Panel Feb.
22, 2013); Amado v. Bridgestone Firestone Ams. Tire Operations, LLC, No.
M2012-00094-WC-R3-WC, 2013 WL 359760, at *4 (Tenn. Workers’ Comp. Panel Jan. 30,
2013); Brooks v. Corr. Med. Servs., No. W2010-00266-WC-R3-WC, 2011 WL 684600, at
*5 (Tenn. Workers’ Comp. Panel Feb. 25, 2011). These rulings contradict the Employee’s
claim that the statutory presumption is, in effect, not subject to rebuttal.8 We conclude,
8
In the only two published decisions addressing the MIR process, the statutory presumption was not
(continued...)
-16-
therefore, that the presumption created by section 50-6-204(d)(5) is not a “permanent
irrebutable presumption” that contravenes the procedural due process rights of employees.
b. Substantive Due Process
In contrast to procedural due process, substantive due process bars oppressive
government action regardless of the fairness of the procedures used to implement the action.
Lynch, 205 S.W.3d at 391-92. Substantive due process claims are divided into two
categories: (1) deprivations of a fundamental constitutional guarantee, and (2) government
actions that are “arbitrary, or conscience shocking, in a constitutional sense.” Id. at 392
(quoting Collins v. City of Harker Heights, 503 U.S. 115, 128 (1992)). “Appropriate limits
on substantive due process come not from drawing arbitrary lines but rather from careful
‘respect for the teachings of history [and] solid recognition of the basic values that underlie
our society.’” Moore v. City of E. Cleveland, Ohio, 431 U.S. 494, 503 (1977) (quoting
Griswold v. Connecticut, 381 U.S. 479, 501 (1965) (Harlan, J., concurring)). While workers’
compensation benefits, as property rights, are protected by article I, section 8 of the
Tennessee Constitution, they are not fundamental rights “implicit in the concept of ordered
liberty.” See Vogel v. Wells Fargo Guard Servs., 937 S.W.2d 856, 858 (Tenn. 1996); see
also Lynch, 205 S.W.3d at 392 (“While it is certainly important to ensure that workers obtain
redress for industrial accidents, the workers’ compensation scheme does not stand on the
same footing as those fundamental rights identified by state and federal courts [as] ‘implicit
in the concept of ordered liberty’ so as to raise substantive due process concerns.”). In
consequence, our analysis addresses whether the statutory presumption created by Tennessee
Code Annotated section 50-6-204(d)(5) is “arbitrary, or conscience shocking, in a
constitutional sense.” Section 50-6-204(d)(5) “comports with substantive due process if it
bears ‘a reasonable relation to a proper legislative purpose’ and is ‘neither arbitrary nor
discriminatory.’” Gallaher v. Elam, 104 S.W.3d 455, 463 (Tenn. 2003) (quoting Riggs v.
Burson, 941 S.W.2d 44, 51 (Tenn. 1997)).
By the adoption of the MIR process, the General Assembly sought to establish “a
resource to resolve disputes regarding the degree of permanent medical impairment ratings
8
(...continued)
even applied by the trial court because the MIR report was found to be inadmissible altogether. See Lazar
v. J.W. Aluminum, 346 S.W.3d 438, 443 (Tenn. 2011) (holding that the trial court properly declined to
consider an MIR report that was obtained as a means of seeking reconsideration of an original settlement
because “[w]hen an award is subject to reconsideration, the trial court is bound by the medical impairment
rating that was the basis of the original award or settlement.” (citing Tenn. Code Ann. §
50-6-241(d)(1)(B)(iv))); Williams, 328 S.W.3d at 502-03 (holding that even though “properly prepared and
certified MIR reports should not be excluded as hearsay,” the trial court did not abuse its discretion by ruling
that the MIR report was inadmissible as untimely because of it having been made available only a few days
before trial, which denied the employee a reasonable opportunity to gather rebuttal evidence).
-17-
for injuries or occupational diseases to which the [Workers’ Compensation Law] is
applicable.” Tenn. Comp. R. & Regs. 0800-02-20-.02(1). Just as the Workers’
Compensation Law is remedial in nature, so is the MIR process as a component part. See
Trosper v. Armstrong Wood Prods., Inc., 273 S.W.3d 598, 609 n.5 (Tenn. 2008) (recognizing
that Tennessee Code Annotated section 50-6-116 “declares the Workers’ Compensation
statute to be remedial in nature, and directs that the statute ‘shall be given an equitable
construction by the courts, to the end that the objects and purposes of this chapter may be
realized and attained’” (quoting Tenn. Code Ann. § 50-6-116 (2008))). The legislative
design has been to compensate injured workers as quickly and efficiently as possible. See
Nichols, 318 S.W.3d at 360 (“Because of their remedial nature, this Court has traditionally
construed workers’ compensation statutes in a liberal manner in order to promote and adhere
to the [Workers’ Compensation Law’s] purposes of securing benefits to those workers who
fall within its coverage.” (citation and internal quotation marks omitted)).
We have consistently recognized the prerogative of the legislature to establish the
policies and procedures necessary to administer workers’ compensation claims. Martin, 90
S.W.3d at 631-32. Like the establishment of the Benefit Review Conference in 2004, the
creation of the MIR process in 2005, designed to minimize costs and expedite the resolution
of claims by injured workers, does not qualify as “an ‘arbitrary, or conscience shocking’
exercise of the legislature’s authority.” Lynch, 205 S.W.3d at 392 (citing Collins, 503 U.S.
at 128). Instead, the legislature “has merely provided an alternative procedure in a limited
and specific context—workers’ compensation cases” in which the employee and the
employer disagree as to the appropriate medical impairment rating. Martin, 90 S.W.3d at
632. In consequence, the MIR program established in section 50-6-204(d)(5) does not
violate the principles of substantive due process.
C. Application of Section 50-6-204(d)(5)
Having determined that the statutory presumption created by section 50-6-204(d)(5)
is not limited to use by the DOL and that the terms do not violate constitutional principles,
we now turn to the application of the presumption to the evidence in this record. The trial
court determined that the presumption was overcome by clear and convincing evidence and,
therefore, rejected the 7% rating by Dr. Weisman, the MIR physician, in favor of the 10%
rating by Dr. Landsberg, the Employee’s independent medical examiner. The Employer
contends that the trial court erred by relying upon the medical qualifications of the
physicians. Although we presume that the trial court’s findings of fact are correct, unless the
evidence preponderates otherwise, Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002),
whether the facts establish clear and convincing evidence to overcome the statutory
presumption of accuracy of an MIR report is a question of law that we must review de novo
with no presumption of correctness, see Reid ex rel. Martiniano v. State, 396 S.W.3d 478,
515 (Tenn. 2013) (citing In re Bernard T., 319 S.W.3d 586, 596-97 (Tenn. 2010)).
-18-
While a comparison of the differing medical specialties of an MIR physician and other
testifying physicians “is certainly an appropriate [factor] to consider in evaluating conflicting
expert medical evidence, it is not sufficient alone to rebut the presumption created by section
50-6-204(d)(5).” Claiborne v. ABC Grp. Fuel Sys., Inc., No. M2008-02292-WC-R3-WC,
2009 WL 4017167, at *5 (Tenn. Workers’ Comp. Panel Nov. 20, 2009). Furthermore,
“[s]imply because one or more evaluating physicians disagree with a properly founded MIR
evaluation does not permit a finding that proof to the contrary has been established.” Beeler
v. Lennox Hearth Prods., Inc., No. W2007-02441-SC-WCM-WC, 2009 WL 396121, at *4
(Tenn. Workers’ Comp. Panel Feb. 18, 2009). “A disagreement between medical expert
witnesses as to the proper diagnosis of an employee’s condition may not, in and of itself,
constitute the clear and convincing evidence needed to overcome the statutory presumption
of accuracy afforded an MIR physician’s impairment rating.” Smith, 2013 WL 683192, at
*4.
This Court has described “clear and convincing evidence” as that “in which there is
no serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.” Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992). In the
specific context of the statute at issue, the clear and convincing evidence standard has been
interpreted to mean that “if no evidence has been admitted which raises a ‘serious and
substantial doubt’ about the evaluation’s correctness, the MIR evaluation is the accurate
impairment rating.” Beeler, 2009 WL 396121, at *4. Another Special Workers’
Compensation Appeals Panel has also observed that “[a] straightforward interpretation of
[the clear and convincing evidence] standard favors, or even requires, the presentation of
affirmative evidence that an MIR physician had used an incorrect method or an inappropriate
interpretation of the AMA Guides to overcome the statutory presumption.” Tuten, 2010 WL
3363609, at *4 (emphasis added).
Since the Panel’s decision in Tuten, other Panels have retreated from such a narrow
interpretation of the clear and convincing evidence standard. For example, a Panel has
“observed that the presumption found in section 50-6-204(d)(5) may be rebutted by
affirmative evidence that an MIR physician ‘used an incorrect method or an inappropriate
interpretation’ of the AMA Guides.” Smith, 2013 WL 683192, at *3 (emphasis added)
(quoting Tuten, 2010 WL 3363609, at *4). Another held that “[p]roof that an MIR physician
used an incorrect method or an inappropriate interpretation of the AMA Guides can be used
to overcome the statutory presumption.” Bean, 2011 WL 686449, at *7 (emphasis added)
(citing Tuten, 2010 WL 3363609, at *4). Yet another Panel cited Tuten for its statement of
“what may be required to rebut[] the presumption found in [section] 50-6-204(d)(5).”
Brooks, 2011 WL 684600, at *3 (emphasis added). In any event, “[w]hen deciding whether
or not an employee has rebutted the statutory presumption of correctness enjoyed by an MIR
-19-
physician’[s] impairment rating, the focus is on the evidence offered to rebut that physician’s
rating.” Id. at *5 (emphasis added); see also Smith, 2013 WL 683192, at *4.
In this instance, the Employee did not present any proof that specifically rebutted the
7% rating by Dr. Weisman. On remand, the Employee submitted to an MIR evaluation and
the content of the MIR report was stipulated as evidence. Although the Employee also
submitted the deposition of Mr. Blaisdell, the Program Coordinator of the MIR program in
the DOL, his testimony did not address the issue of medical impairment. In fact, at the
hearing on remand, counsel for the Employee relied solely upon the constitutional argument,
conceding that there was no clear and convincing evidence to overcome the statutory
presumption. Although counsel retracted the concession during oral argument before this
Court, the record confirms that the Employee made no attempt to produce testimony clearly
and convincingly rebutting the contents of the MIR report.
The Employee did, as indicated, offer the deposition testimony of Mr. Blaisdell, which
related primarily to the general administration of the MIR process, including the relevant
chain of command in the DOL, the procedures for qualifying physicians to be listed on the
MIR registry, and the standards applied on peer review of an MIR report. While only one-
and-one-half pages of his seventy-six-page deposition transcript relate to the MIR report
submitted by Dr. Weisman, Mr. Blaisdell did testify that he had discovered that Dr. Weisman
had initially submitted an outdated reporting form, that he had notified Dr. Weisman of the
error, and that he had asked him to re-contact the Employee and use the current form in order
to accurately complete his final report. According to Mr. Blaisdell, Dr. Weisman telephoned
the Employee with additional questions, completed the current form, and submitted a proper
MIR report. When asked how an employee could rebut the presumption of accuracy of an
MIR report, Mr. Blaisdell responded that the clear and convincing evidence standard was
defined in case law, and that it would be left to the discretion of the trial court to determine
whether that standard had been met.
Three decisions by Special Workers’ Compensation Appeals Panels illustrate the
differences between the evidence submitted in this instance and what has previously qualified
as evidence so clear and convincing as to rebut the statutory presumption afforded an MIR
report. In Brooks v. Correctional Medical Services, the trial court found that the
“observations of Employee, Employee’s testimony, the medical proof, and the testimony of
the physician who had treated [E]mployee for a number of years” had overcome the statutory
presumption. 2011 WL 684600, at *5. The Panel affirmed, holding that “the focus is on the
evidence offered to rebut [the MIR] physician’s rating,” which included, “[p]erhaps most
importantly,” testimony by the treating physician as to errors in the evaluation conducted by
the MIR physician. Id. In Amado v. Bridgestone Firestone Americas Tire Operations, LLC,
the trial court found that the statutory presumption had been overcome by clear and
-20-
convincing evidence because an independent medical examiner testified at trial that he had
reviewed the MIR report and determined that the MIR physician had used an incorrect
method in reaching the impairment rating. 2013 WL 359760, at *2. The Panel affirmed,
finding that the evidence did not preponderate against the conclusion of the trial court
because the employer had failed to present any evidence to contradict the testimony of the
independent medical examiner. Id. at *4. Finally, in Smith v. Electric Research &
Manufacturing Cooperative, Inc., the Panel affirmed the trial court’s finding that the
presumption had been overcome by lay and expert testimony, which included testimony by
an examining physician who stated that the MIR physician had erred in his evaluation of the
employee. 2013 WL 683192, at *4-5.
In this instance, the deposition testimony of Mr. Blaisdell does not overcome the
presumption of accuracy of Dr. Weisman’s 7% impairment rating. While the trial court
properly reviewed the entire record in reaching its conclusion, nothing called into question
the accuracy of the MIR report. Counsel for the Employee conceded as much during the
hearing on remand. Absent any other evidence to question the accuracy of the MIR report,
the fact that Dr. Landsberg—whose deposition was taken two years prior to Dr. Weisman’s
evaluation of the Employee—assigned a different impairment rating under the AMA Guides
is not sufficient to overcome the statutory presumption. See Smith, 2013 WL 683192, at *4;
Beeler, 2009 WL 396121, at *4. Further, the trial court adopted the higher impairment rating
of 10% by Dr. Landsberg based in large measure on differences in the respective medical
qualifications of Dr. Landsberg and Dr. Weisman. Although differences in medical
qualifications, standing alone, are typically insufficient to overcome the statutory
presumption, see Claiborne, 2009 WL 4017167, at *5, the trial court erroneously accredited
Dr. Landsberg as a member of a “disability rating physicians board academy” and found this
“unique qualification” sufficient to overcome the presumption. To the contrary, the record
demonstrates that Dr. Weisman, not Dr. Landsberg, was a member of the American Board
of Independent Medical Examiners.
Under these circumstances, the evidence preponderates against the trial court’s factual
findings as to the medical qualifications of the physicians, and the presumption of accuracy
has not been otherwise overcome by clear and convincing evidence. While we acknowledge
that an employee may be able to overcome the presumption even without “affirmative
evidence that an MIR physician had used an incorrect method or an inappropriate
interpretation of the AMA Guides,” Tuten, 2010 WL 3363609, at *4, in this instance, the
Employee has been unable to produce evidence of rebuttal.9 That Dr. Weisman had initially
9
For example, in Goodwin v. United Parcel Service, Inc., No. M2010-01134-WC-R3-WC, 2011 WL
1434581, at *3 (Tenn. Workers’ Comp. Panel Apr. 14, 2011), the presumption was rebutted through
(continued...)
-21-
used an outdated form in the submission of his MIR report is not enough to discredit the
content of his revised report using the proper form. We must conclude, therefore, that the
evidence was not so clear and convincing as to overcome the statutory presumption of
accuracy of Dr. Weisman’s report.
IV. Conclusion
Tennessee Code Annotated section 50-6-204(d)(5) is compliant with constitutional
standards. The presumption of accuracy afforded an independent medical examiner who is
appointed under the MIR program does not violate the separation of powers doctrine and
meets the procedural and substantive standards of due process. We must conclude that
although the Employee is entitled to an award of disability, the evidence preponderates
against the trial court’s alternative finding that the presumption was overcome by clear and
convincing evidence. The judgment is affirmed, as modified, in that the Employee is
awarded benefits based upon the 7% impairment rating by the MIR physician rather than the
10% rating. The cause is remanded to the trial court to modify the award of permanent
partial disability benefits to one-and-one-half times the 7% rating, and for any further
proceedings necessary. Costs of this appeal are taxed to William H. Mansell and his surety,
for which execution may issue if necessary.
_______________________________
GARY R. WADE, CHIEF JUSTICE
9
(...continued)
testimony that although the MIR physician had performed his examination correctly, he had incorrectly
calculated the resulting impairment rating either by making an error in arithmetic or by misreading the AMA
Guides. The presumption might also be rebutted by proof that an MIR physician was not properly qualified
for inclusion on the MIR registry, had been removed from the MIR registry subsequent to providing his or
her report, or was not qualified to testify as an expert. See, e.g., Nielsen Bainbridge, LLC v. Shinn, No.
M2008-01639-WC-R3-WC, 2010 WL 153041, at *2, *5 (Tenn. Workers’ Comp. Panel Jan. 15, 2010)
(finding that removal of physician from MIR registry due to misrepresentations in the MIR application
process weighed against physician’s credibility); Walker v. Saturn Corp., No. M2007-01506-WC-R3-WC,
2008 WL 4072075, at *9 (Tenn. Workers’ Comp. Panel Sept. 2, 2008) (allowing director of MIR program
to testify regarding former MIR physician’s qualifications to testify as an expert witness). Indeed, there may
be other circumstances that would qualify as clear and convincing evidence to rebut the statutory
presumption of accuracy given an MIR report. In this instance, however, no such circumstances were
presented in the trial court.
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