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Tennessee Employers May Not Require Referrals to a Single Specialist

November 17, 2021
May 23, 2019

An expedited hearing was recently held in the case of Jason Rhodes v., LLC and American Zurich Insurance Company before the Honorable Thomas Wyatt, administrative judge for the Bureau of Workers’ Compensation.  The expedited hearing was primarily conducted to determine if the employee was entitled to a panel, or treatment, by an orthopedic specialist of his choice, despite the employee’s refusal to see an orthopedic physician to whom he was directly referred by his authorized treating physician.  

In the instant case, employee injured his foot when it was struck by a falling box.  He timely reported the injury and was initially provided a panel listing two walk-in clinics and one orthopedic specialist, Dr. Rickey Hutcheson.  It is important to note that the initial panel was in compliance with the employer’s requirement to provide medical care under the Tennessee Workers’ Compensation Act.  Employee chose to seek medical care from one of the walk-in clinics closer to his home, and the next day began treatment with Dr. Natasha Ballard.

After several consultations with Dr. Ballard, employee was directly referred to Dr. Rickey Hutcheson.  Employee chose not to see Dr. Hutcheson because he had previously declined to select him as an authorized treating physician due to the distance from his home.  When the employer insisted employee see Dr. Hutcheson, he sought treatment with Dr. Jesse Doty instead.

At the expedited hearing, employee presented testimony from Dr. Ballard.  In addition to addressing causation for employee’s foot injury, she testified that she referred employee to Dr. Hutcheson because her treatment did not resolve employee’s ongoing medical complaints.  She testified that in order to include their walk-in clinic on employer’s panels, they must agree to make referrals directly to Dr. Hutcheson for orthopedic care.  

The employer argued that the direct referral process in subsection Tenn. Code Ann. §50-6-204(a)(3)(A)(ii) allowed the treating physician to make a referral to a specialist “when necessary” with no further restrictions on the physician’s decision.  Moreover, the subsection states that the employer is deemed to have accepted the referral unless the employer provides the employee a panel of specialists within three business days of the date the employer received notice of the referral.

Judge Wyatt disagreed with the employer.  The court held that the employer’s separate requirement, that walk-in clinics on its panels must refer patients to Dr. Hutcheson, was equivalent to directing orthopedic treatment to a single physician.  Specifically, Judge Wyatt opined that the employer failed to comply with the spirit of the direct-referral statute when it removed the treating physician’s neutrality by compelling referral to a single specialist.  

In other words, the employer attempted to have 100% control over the orthopedic specialist seen by its employees.  This is certainly contrary to the requirements of Tenn. Code Ann. §50-6-204(a)(3)(A)(i) that state an employer must provide free medical care for an employee’s work injuries by offering a panel listing “a group of three (3) or more independent reputable…specialty groups if available in the injured employee’s community.” (Emphasis added.)

Based upon Judge Wyatt’s findings, employers should not require underlying panel physicians, such as those associated with walk-in clinics, to make direct referrals only to specific specialists in order to be included on their panels.