Overstreet v. Trw Commercial Steering Div.

Decision Date17 June 2008
Docket NumberNo. M2007-01817-SC-R10-WC.,M2007-01817-SC-R10-WC.
Citation256 S.W.3d 626
CourtTennessee Supreme Court

William Joseph Butler and E. Guy Holliman, Lafayette, Tennessee, for the appellee, Billy Overstreet.


GARY R. WADE, J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., JANICE M. HOLDER, and CORNELIA A. CLARK, JJ., joined. WILLIAM C. KOCH, JR., J., concurring.

In this claim for workers' compensation, the defendant/employer filed a motion seeking permission to have an ex parte interview with the treating physician regarding the medical condition of the plaintiff/employee. The employer also sought an order requiring the employee to submit to an independent medical evaluation. The trial court denied each motion, and we granted the employer's application for extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. Upon review of the record and consideration of the applicable law, we hold that (1) the employer may not communicate ex parte with the employee's treating physician without first obtaining a waiver of the implied covenant of confidentiality from the employee; and (2) the employer's request for the worker to undergo a medical evaluation should be granted unless the trial court determines that the request is unreasonable.

Facts and Procedural History

Billy Overstreet ("Overstreet") worked for TRW Commercial Steering Division ("TRW") for thirty-four years until his retirement on May 6, 2003. During his term of employment, Overstreet, a high school graduate with limited skills in reading and arithmetic, was a painter, a tow motor operator on the shipping dock, and an assembly line worker. His retirement income from TRW is $1,078 per month. Because of deep vein thrombosis in his legs, he receives an additional $1,594 per month in Social Security disability benefits.

On May 6, 2005, two years after his retirement, Overstreet complained to a nurse practitioner of hearing loss and a ringing in his ears. Dr. Scott Fortune conducted an audiogram five days later and concluded that Overstreet had a 40% hearing loss. Overstreet notified TRW of his condition and claimed that his hearing loss was related to his employment. After being selected as the treating physician from a panel of three physicians provided by TRW, Dr. David Haynes examined Overstreet, determined that he had a 13.1% permanent impairment for hearing loss and a 5% impairment for tinnitus (ringing in the ears). He recommended hearing aids. After reviewing his work history, Dr. Haynes concluded that Overstreet's hearing loss was caused, in part, by his employment with TRW. Nevertheless, TRW denied the workers' compensation claim, and Overstreet filed a complaint in the Chancery Court of Smith County.

After the examination by Dr. Haynes, Overstreet provided him with written notification "NOT [to] discuss anything about me with the attorney or attorneys who represent or work for my employer and/or its workers' compensation insurance carrier (company) in person, by letter, by phone and/or otherwise." Later, TRW was unsuccessful in its attempts to interview either Dr. Haynes or Dr. Fortune outside the formal procedures for discovery. Lucille Woodruff, Dr. Haynes's office manager, informed TRW that the only way that Dr. Haynes could discuss Overstreet's condition would be in a deposition. Dr. Fortune's front office supervisor, Tambra Ward, notified TRW that Dr. Fortune would be unable to discuss his medical diagnosis without Overstreet present.

TRW then filed a motion asking the trial court to order an independent medical evaluation by its physician, Dr. Bronn Rayne. In the alternative, TRW sought permission to question Dr. Haynes out of the presence of Overstreet and his counsel. The trial court denied both requests and refused an interlocutory appeal.

TRW made application for an extraordinary appeal under Rule 10 of the Tennessee Rules of Appellate Procedure:

An extraordinary appeal may be sought on application and in the discretion of the appellate court alone of interlocutory orders of a lower court from which an appeal lies to the Supreme Court, Court of Appeals or Court of Criminal Appeals: (1) if the lower court has so far departed from the accepted and usual course of judicial proceedings as to require immediate review, or (2) if necessary for complete determination of the action on appeal as otherwise provided in these rules. The appellate court may issue whatever order is necessary to implement review under this rule.

Tenn. R.App. P. 10(a). TRW asserts that Overstreet's injury was not caused by his workplace environment because he did not begin to suffer from hearing impairment until two years after his retirement. TRW argues that independent medical testimony will be necessary to advance any of its theories of alternative causation, such as Overstreet's advancing age, his operation of a riding lawnmower without ear protection, or his occasional visits to noisy casinos in Tunica and Las Vegas. TRW submits that because the question of causation will hinge upon the expert medical proof, an independent medical evaluation is essential in order to prepare adequately for litigation.

In an effort to establish guidance on these important questions, we granted the extraordinary appeal. The specific issues presented are (1) whether an employer is permitted to conduct an ex parte interview with an employee's treating physician; and (2) whether the employer is entitled to a medical evaluation conducted by a physician of the employer's choice.

Standard of Review

Because the issues presented for our review involve questions of law, our standard of review is de novo with no presumption of correctness. Perrin v. Gaylord Entm't Co., 120 S.W.3d 823, 826 (Tenn.2003); Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn.1997). The standard of review for issues of fact is de novo upon the record accompanied by a presumption of correctness of the trial court's findings, unless the preponderance of the evidence is otherwise. Tenn.Code Ann. § 50-6-225(e)(2) (2005).

Our resolution of the dispute also depends upon statutory interpretation. Well defined precepts apply. "`[T]he most basic principle of statutory construction is to ascertain and give effect to the legislative intent without unduly restricting or expanding a statute's coverage beyond its intended scope.'" Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002) (quoting Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995)). In construing legislative enactments, we presume that every word in a statute has meaning and purpose and should be given full effect if the obvious intention of the General Assembly is not violated by so doing. In re C.K.G., 173 S.W.3d 714, 722 (Tenn.2005). "When the statutory language is clear and unambiguous, we must apply its plain meaning in its normal and accepted use, without a forced interpretation that would limit or expand the statute's application." Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn.2004). In that instance, our obligation is to enforce the written language without reference to the broader statutory intent, the history of the legislation, or other sources. Abels ex rel. Hunt v. Genie Indus. Inc., 202 S.W.3d 99, 102 (Tenn. 2006).

I. Ex Parte Communications with Treating Physician

There is no testimonial privilege for doctor-patient communications in Tennessee. Quarles v. Sutherland, 215 Tenn. 651, 389 S.W.2d 249, 251-52 (1965). In Givens v. Mullikin ex rel. McElwaney, 75 S.W.3d 383, 407-08 (Tenn.2002), however, this Court acknowledged the existence of an implied covenant of confidentiality between a physician and a patient arising out of the original contract of treatment for payment, one that specifically precluded informal discussions with a law firm employed to defend the patient's claim: "[A] physician breaches his or her implied covenant of confidentiality by divulging medical information, without the patient's consent, through informal conversations with others." Id. at 409. We observed that "patients and physicians now clearly expect that the physician will keep the patient's information confidential, and this expectation arises at the time that the patient seeks treatment." Id. at 407. The implied covenant forbids doctors from "releas[ing] without the patient's permission" "any confidential information gained through the [physician-patient] relationship." Id. "While the understanding of the parties giving rise to the implied covenant of confidentiality permits a physician to disclose information pursuant to subpoena or court order, this understanding does not include permission to divulge this information informally without the patient's consent." Id. at 408-09.

In Alsip v. Johnson City Medical Center, 197 S.W.3d 722 (Tenn.2006), this Court explained that the implied covenant of confidentiality prohibits ex parte communications between the defense counsel and the plaintiff's non-party physicians. In the analysis, this Court "balance[d] society's legitimate desire for medical confidentiality against ... [the] need for full disclosure of plaintiffs' relevant health information," concluding that the prohibition of any communications with physicians outside of the presence of the patients would not serve as a disadvantage in view of "the formal [discovery] procedures prescribed in Tennessee Rule of Civil Procedure 26.01 ... [such as] deposition upon oral examination or written questions, written interrogatories, and requests for admissions."1 Id. at 727.

Ostensibly, our holding in Alsip would seem to prevent TRW from communicating with Dr. Haynes outside normal discovery procedures. TRW insists, however, that this case differs from Alsip in two fundamental ways: First,...

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