All About the Experts: Rebutting the Parsons Presumption
The Thornton decision is guided by the Parsons presumption, which holds that when additional medical treatment for a compensable injury is required, a rebuttable presumption arises in favor of the claimant that the treatment is directly related to the original compensable injury.
This claim arose from a back injury that occurred in July 1998 when plaintiff sat down in a chair at work, heard a sudden “pop,” and fell to the floor. Plaintiff’s claim was accepted and defendants paid medical and indemnity benefits as a result of the injury. It was determined that plaintiff reached maximum medical improvement in July 2001 and was assigned a 20 percent impairment rating to her spine.
Plaintiff underwent an extensive course of treatment for more than a decade following her injury. Treatment highlights included a bilateral lumbar laminectomy, a spinal fusion with hardware placement, a three-level spinal fusion, a bilateral medial branch block, and injections. All were authorized and paid for by defendants.
Two facts were particularly relevant to this claim on appeal. First, defendants suspended plaintiff’s medical benefits for approximately a year and a half as a result of plaintiff abusing alcohol and cocaine from 2006 to 2009. Second, plaintiff fell for a second time in February 2009 when she was knocked down in a store.
In 2013, Dr. William Richardson recommended that plaintiff undergo a rhizotomy, which defendants refused to authorize. In support of their refusal, defendants obtained the opinions of two experts. Dr. Bruce LeForce concluded that the recommended rhizotomy procedure was related to plaintiff’s original compensable injury, but did not believe it was medically necessary. Dr. Mark Foster concluded that plaintiff’s current pain was not related to her original compensable injury because plaintiff had reached maximum medical improvement and her pain had been controlled with Tylenol until 2007.
This matter was heard at the deputy commissioner level in August 2014. An Opinion and Award was entered in April 2015 ordering defendants to pay for the rhizotomy treatment. Defendants appealed to the Full Commission who affirmed the deputy commissioner’s award based primarily upon the following testimony provided by Dr. Richardson and Dr. Foster.
Dr. Richardson testified he had performed thousands of rhizotomies, and in his experience, 80 percent of patients who had successful diagnostic blocks responded well to rhizotomies. He testified, to a reasonable degree of medical certainty, that plaintiff’s need for a rhizotomy was related to her original compensable injury. Dr. Richardson testified that, given plaintiff’s substance abuse history, trying the non-medication route with rhizotomy treatment seemed appropriate. He also testified that the February 2009 incident in which plaintiff was knocked down in a store likely exacerbated her pre-existing low back condition, which was related to the original compensable injury.
Dr. Foster testified that he had not examined plaintiff, but felt that plaintiff’s current condition was related to the February 2009 fall. He testified that he could not say to a reasonable degree of medical certainty that plaintiff’s current low back condition was unrelated to her original compensable injury. Dr. Foster also testified that a rhizotomy would not be an unreasonable procedure for plaintiff to try.
The Parsons presumption holds that when additional medical treatment for the compensable injury is required, a rebuttable presumption arises that the treatment is directly related to the original compensable injury and the employer has the burden of producing evidence establishing that the treatment is not directly related to the original compensable injury. Here, the Commission concluded that in accordance with the holding in Parsons, plaintiff was entitled to a presumption that her current lower back pain was causally related to her compensable injury; and based upon the above testimony, defendants had failed to rebut this presumption. The Commission further concluded that even if defendants had rebutted the Parsons presumption (shifting the causation burden back to plaintiff), Dr. Richardson’s testimony established a causal relationship between plaintiff’s current back condition and her compensable accident, therefore establishing plaintiff’s burden.
Defendants appealed to the Court of Appeals arguing that competent evidence had been offered to rebut the presumption that plaintiff’s current lower back condition was directly related to her original compensable injury. Specifically, defendants argued that plaintiff’s February 2009 fall constituted an independent, intervening cause responsible for plaintiff’s current lower back condition. As a result, defendants argued that the recommended rhizotomy was attributable to plaintiff’s subsequent 2009 fall rather than her original 1998 compensable injury.
The Court of Appeals affirmed the Full Commission decision, holding that defendants failed to rebut the Parsons presumption.
First, the Court of Appeals pointed out that the veracity of Dr. Richardson’s testimony outweighed the testimony offered by Dr. Foster. Among other factors, the Court of Appeals specifically noted that Dr. Foster could not testify to a reasonable degree of medical certainty that plaintiff’s pain and symptoms after her February 2009 fall were unrelated to her original compensable injury.
Second, the Court of Appeals specifically addressed defendants’ contention that plaintiff’s February 2009 fall constituted an intervening cause independently responsible for plaintiff’s current lower back condition. The Court of Appeals referenced the Horne case which held that an aggravation of a compensable injury is also compensable, unless it is the result of an independent intervening cause attributable to claimant’s “own intentional conduct”. Here, the Court of Appeals indicated that there was no evidence in the record that plaintiff’s 2009 fall was attributable to her “own intentional conduct.”
Lastly, for the sake of argument, the Court of Appeals held that even if defendants had rebutted the Parsons presumption, Dr. Richardson’s testimony standing alone provided competent evidence to support the Commission’s finding that plaintiff’s current lower back injury was causally related to her original compensable injury.