Mansell v. Bridgestone Firestone N. Am. Tire, LLC

• Decision Date: 20 August 2013
• Docket Number: No. M2012–02394–WC–R3–WC.,M2012–02394–WC–R3–WC.
• Citation: 417 S.W.3d 393
• Parties: William H. MANSELL v. BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC, et al.
• Court: Tennessee Supreme Court

417 S.W.3d 393

William H. MANSELL

v.BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC, et al.

No. M2012–02394–WC–R3–WC.

Supreme Court of Tennessee,

at Nashville.

May 1, 2013 Session Heard at Knoxville.

Aug. 20, 2013.

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

GARY R. WADE, C.J., delivered the opinion of the Court, in which JANICE M. HOLDER, CORNELIA A. CLARK, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.

GARY R. WADE, C.J.

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.

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.

(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, seeTenn.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 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.

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 alsoTenn. R.App. P. 13(d). When credibility and the weight to be given testimony...