The Tennessee Supreme Court recently marked for publication the decision in the case of Williams v. United Parcel Service, et al. where the Special Panel held that a properly prepared and certified MIR report should not be excluded as hearsay because its admissibility is otherwise provided by law even though it did rule the trial court did not abuse its discretion in excluding the report for untimely filing. The Tennessee Supreme Court has thus determined that an MIR report is admissible as a matter of law in the same way as reports of court-appointed neutral physicians (T.C.A. §50-6-204(d)(9)) and statements of a physician’s opinion on Form C-32 (T.C.A. §50-6-235(c)).
Mr. Steven Williams, a sixty year old with a high school education, had worked for UPS for twenty-nine years mostly as a “feeder driver.” His job required a lot of lifting, climbing, and squatting. In 2003, Mr. Williams suffered a right knee injury and had to undergo arthroscopic surgery by Dr. Kurt Spindler. Mr. Williams eventually returned to work without restrictions and settled his claim based on the 5% impairment assigned by Dr. Spindler.
Mr. Williams continued working for UPS and injured his left knee on April 18, 2006. Following this new injury, Mr. Williams began favoring his right leg and foot causing an aggravation of the condition of his right knee.
After surgical intervention on the left knee, Dr. Spindler eventually assigned a 5% impairment, which he later changed to 10% during his deposition. Mr. Williams saw a Dr. Robert Landsberg for an IME and he assigned an 18% impairment to each leg.
On September 8, 2009, Dr. James Talmage examined Mr. Williams pursuant to the Tennessee Department of Labor’s MIR program and assigned a 12% impairment rating. The Department of Labor approved the MIR Report on September 16, 2009, and was filed with the Clerk and Master on September 21, 2009, which was the day before trial. At trial, the trial court accredited Dr. Landsberg’s testimony awarding 27% disability to both legs and excluded the MIR report on hearsay grounds and for not being timely filed.
On appeal, the Special Panel noted that “[a]s a general matter, written reports of medical evaluations conducted for the purpose of workers’ compensation litigation are hearsay.” Under Tennessee Rules of Evidence 802, such reports are not admissible unless an exception exists under the Tennessee Rules of Evidence or by law. The Court ultimately held that even though said reports do not qualify as an exception to the hearsay rule as a record of a regularly conducted activity under Tennessee Rule of Evidence 803(6), the reports are admissible as a matter of law in the same way as reports of court-appointed neutral physicians and statements of physician’s opinions on a Form C-32.
If the requirements in Tenn. Code Ann. § 50-6-204(d)(5) and the regulations promulgated thereto are met, the report becomes a self-authenticating official document certified by the Department of Labor and Workforce Development. The document itself gives rise to a rebuttable presumption that the impairment rating in the documents is “the accurate impairment rating.” Accordingly, properly prepared and certified MIR reports should not be excluded as hearsay because their admissibility is otherwise provided by law.
The Court did go on to find that the Trial Court did not abuse its discretion in excluding the MIR report because it was filed only one day prior to the trial date. However, the Court did not provide any guidance as to what would be considered timely for future cases.
I believe this holding allows for efficiency in getting these MIR reports in Court similar to C-32 reports. If you want to challenge the presumption attached to the MIR findings, I would suggest filing a Notice of Objection similar to an objection to a C-32 report and then promptly scheduling the deposition of the MIR doctor.