Tennessee: Appellate Court Orders Payment for Self-Procured Surgery Where Aborted Surgery by Panel Physician Almost Kills Injured Employee

Tennessee: Appellate Court Orders Payment for Self-Procured Surgery Where Aborted Surgery by Panel Physician Almost Kills Injured Employee

In an unpublished decision, the Supreme Court of Tennessee (Workers’ Compensation Appeals Panel) modified, in relevant part, a trial court’s decision that had denied an employee’s request for payment of medical expenses associated with a second round of surgery on the basis that the neurosurgeon was not listed on the employer's panel of medical providers.  The employee had initially sought treatment from a surgeon listed on the employer’s panel, but that the surgery had to be aborted—as the employee’s surgery was beginning, the nerve block anesthesia was mistakenly injected in the wrong area, causing paralysis. The employee was unable to breathe, lost consciousness, and was intubated and placed on a ventilator. Following the aborted shoulder surgery, the employee suffered from a number of medical issues, including loss of control over both his bladder and bowels.  The employee then went to a neurosurgeon who diagnosed compression of the employee’s spine and recommended surgery as soon as possible, due to the danger of paralysis.  The Employee admitted that 11 days prior to the surgery he realized the neurosurgeon was not on the list of authorized physicians.  He chose to proceed anyway over the employer's objection.  The surgery was successful, alleviating the employee’s incontinence and a number of other symptoms.  A second surgery was performed three months later to alleviate additional symptoms related to the employee’s spinal condition.  The trial court ordered payment of the expenses related to the first, but not the second surgeries.  Quoting Larson’s Workers’ Compensation Law, the appellate court indicated that whereas the aborted surgery by the panel surgeon had turned out badly, the self-procured neurosurgeon had been able to resolve the employee's incontinence and averted the possibility of paralysis.  Having gained relief under the neurosurgeon, the employee naturally preferred to remain under his care.  The court indicated that while the employer had every right to contest the compensability of the employee's spinal surgeries and object to any responsibility for the costs of surgery by the neurosurgeon, the circumstances warranted payment for not only the initial, "urgent" surgery by the neurosurgeon, as ordered by the trial court, but also the second surgery. Once the employee had justifiably engaged the neurosurgeon, the subsequent efforts by the employer to arrange for a different physician did not preclude the employee from continuing under his care.

Reported by Thomas A. Robinson, J.D.

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See Arnett v. McMinn County Government, 2013 Tenn. LEXIS 596 (July 9, 2013) [2013 Tenn. LEXIS 596 (July 9, 2013)].

See generally Larson’s Workers’ Compensation Law, § 94.02 [94.02].

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.

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