IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
February 12, 2004 Session
DONNA KILGORE v. NHC HEALTHCARE
Appeal from the Chancery Court for Sequatchie County
No. 1800 Jeffrey S. Stewart, Chancellor
No. M2002-02572-SC-R3-CV - Filed May 17, 2004
We granted this appeal to determine whether the Chancellor had jurisdiction to hear the employee’s
appeal after diagnostic tests ordered by her physician were denied by the employer’s utilization
review program. The Chancellor found that the diagnostic tests were reasonable and necessary and
ordered that they be provided by the employer. The employer appealed, arguing that the Chancellor
did not have jurisdiction to hear the appeal because the employee’s recourse was limited to review
by the Commissioner of Labor and Workforce Development’s utilization review program. The
appeal was argued before the Special Workers’ Compensation Appeals Panel pursuant to Tennessee
Code Annotated section 50-6-225(e)(3), but the appeal was transferred to the full Supreme Court
prior to the Panel issuing its decision. After reviewing the record and applicable authority, we
conclude that the Chancellor had jurisdiction to consider the employee’s appeal of the decision to
deny diagnostic tests made by the employer’s utilization review program. We therefore affirm the
judgment.
Tenn. Code Ann. § 50-6-225(e)(3); Judgment of the Trial Court Affirmed
E. RILEY ANDERSON, J., delivered the opinion of the court, in which FRANK F. DROWOTA , III, C.J.,
and ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.
Paul Campbell, III, Chattanooga, Tennessee, for the Appellant, NHC Healthcare.
Alexander W. Gothard, Chattanooga, Tennessee, for the Appellee, Donna Kilgore.
OPINION
BACKGROUND
The employee, Donna Kilgore (“Kilgore”), injured her lower back while in the course and
scope of her employment and filed a workers’ compensation claim against her employer, NHC
Healthcare (“NHC”). The facts are summarized below.
On January 18, 1999, Kilgore was working as a certified nursing assistant for NHC when she
injured her lower back while moving a patient into the shower. She was referred by her employer
to Dr. Steven Craig Humphreys, an orthopaedic surgeon, who conducted an examination on
February 9, 1999. According to Dr. Humphreys,1 Kilgore had “quite a bit of pain” in her back and
right leg, and numbness and tingling in her right foot. He ordered a Magnetic Resonance Imaging
(“MRI”) diagnostic procedure which demonstrated that Kilgore had a “small disc bulge” in the
lumbar spine at L4-5, as well as some degenerative damage at S-1. Dr. Humphreys testified that
Kilgore’s treatment consisted of physical therapy and medication for pain and inflammation. She
returned to work on February 25, 1999, with work restrictions prohibiting lifting over ten pounds,
bending, and twisting. The work restrictions were lifted in April of 1999.
In May of 1999, Kilgore re-injured her lower back while moving a patient. She returned to
Dr. Humphreys and was treated with physical therapy, anti-inflammatory medication, and epidural
steroid injections. Dr. Humphreys testified that Kilgore continued to have pain, particularly while
sitting, and that a discogram at the L4-5 level showed that Kilgore had radiating pain in her left leg
and hip. When Kilgore reported that she continued to have low back pain in September of 1999,
Dr. Humphreys ordered a second MRI because “it had been over eight months” since she had the
initial MRI. The MRI was denied by NHC’s utilization review program. Shortly thereafter, in
November of 1999, Kilgore filed a workers’ compensation claim.
When Dr. Humphreys was deposed before trial, he testified that Kilgore had reached
maximum medical improvement in December of 1999, and that she had a five percent permanent
impairment to the body as a whole. He also testified that in April of 2000, Kilgore complained that
her back pain had worsened and that the pain interfered with her sleep and caused her to be mildly
depressed. Dr. Humphreys acknowledged that Kilgore was overweight, but he testified that her
lower back pain was suggestive of a disc problem because it worsened when Kilgore was in a seated
position.
Kilgore and NHC settled the workers’ compensation claim before trial, and on January 4,
2001, the trial court approved the settlement. The judgment awarded Kilgore a lump sum of $10,000
and ordered two years of future medical treatment from December 4, 2000, to December 4, 2002.
1
Dr. Humphreys was deposed before the settlement in July of 2000 and afterwards in July of 2001.
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After the settlement was approved and the judgment was entered, Kilgore reported that she
“still had pain in her back.” Dr. Humphreys testified in a later deposition that he ordered an
additional MRI and discogram to obtain information about Kilgore’s condition and to determine the
appropriate treatment options. He explained that the procedures were reasonable and necessary:
[T]hese things aren’t something visual. It’s not like a tumor or an
infection where you can visually see it or they have a fever. When the
outer part of the disc ruptures, most of it’s painful to motion or sitting
and it’s . . . a subjective conversation you have between yourself and
the patient. Typically there aren’t reflex changes, there aren’t sensory
changes.
....
[S]he [was] reporting things that [were] discogenic in nature, which
with an MRI showing degenerative disc changes make that the most
likely diagnosis. Again, the discogram helps to confirm the diagnosis
and that’s another reason we’d like to get it.
Dr. Humphreys’ requests for an MRI and a discogram were again denied by NHC’s utilization
review program.
In March of 2001 – two months after the settlement was approved by the trial court – Kilgore
filed in the trial court a “petition for contempt” alleging that NHC “failed and refused to approve . . .
medical treatment” as required by the trial court’s judgment. In response, NHC asserted that the trial
court had no jurisdiction and that Kilgore’s right to seek review of the decision made by NHC’s
utilization review program was limited to an appeal to the Commissioner of Labor and Workforce
Development’s (“Commissioner”) utilization review program. NHC’s response included the
affidavit of Dr. Robert Clendenin, who stated that an additional MRI and a discogram were not
reasonably necessary in Kilgore’s case.
The trial court treated Kilgore’s petition for contempt as a motion to enforce the judgment
and ordered NHC to provide the requested MRI and discogram. The trial court rejected NHC’s
argument that it lacked jurisdiction and reasoned that the “statutory requirements regarding
utilization review are more appropriate for cases of lifetime benefits . . . .” NHC appealed the
judgment to the Special Workers’ Compensation Appeals Panel, which heard oral argument. The
appeal was then transferred to the full Supreme Court prior to the Panel issuing its decision
STANDARD OF REVIEW
Our standard of review of questions of fact in a workers’ compensation appeal is de novo
upon the record, with a presumption that the trial court’s findings are correct unless the
preponderance of evidence is otherwise. Tenn. Code Ann. § 50-6-225(e)(2) (Supp. 2003); see also
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Richards v. Liberty Mut. Ins. Co., 70 S.W.3d 729, 732 (Tenn. 2002). Our standard of review of
questions of law, however, such as that presented in this case, is de novo without a presumption of
correctness. See Richards, 70 S.W.3d at 732.
ANALYSIS
On appeal, NHC argues that the Chancellor lacked the authority to consider Kilgore’s petition
for contempt as a motion to enforce the judgment because review of the decision made by NHC’s
utilization review program was limited to the Commissioner’s utilization review program under
Tennessee Code Annotated section 50-6-124(d) (1999). The employee, Kilgore, argues that the
Chancellor had jurisdiction to consider the petition and properly ordered NHC to provide an
additional MRI and discogram.2
Utilization Review
To place this case into an understandable context, we will first summarize the statutory
provisions governing utilization review programs in workers’ compensation cases.
In 1992, the legislature enacted a number of statutes authorizing and creating programs for
the management and the “utilization and quality of medical care services” in workers’ compensation
cases. See Tenn. Code Ann. § 50-6-122(a)(1) (1999). The legislature defined “utilization review”
in workers’ compensation cases as the “evaluation of the necessity, appropriateness, efficiency and
quality of medical care services provided to an injured or disabled employee based on medically
accepted standards and an objective evaluation of the medical care services provided . . . .” Tenn.
Code Ann. § 50-6-102(17) (Supp. 2003). The legislative intent in adopting utilization review is to
make “quality medical care services . . . available to injured and disabled employees[,]” while
“establishing cost control mechanisms to ensure cost-effective delivery of medical care services
. . . .” Tenn. Code Ann. § 50-6-122(a)(1) (1999).
To implement utilization review programs, the Commissioner is required by statute to
establish “a system of utilization review of selected outpatient and inpatient health care providers
to employees claiming benefits under the Workers’ Compensation Law . . . .” Tenn. Code Ann.
§ 50-6-124(a) (1999); see also Tenn. Comp. R. & Regs. 0800-2-6-.02(2) (2003) (“The Commissioner
of Labor shall provide or contract for certain utilization review services.”). In addition, employers
are then permitted to implement their own utilization review programs by contracting with a
utilization review provider. See Tenn. Code Ann. § 50-6-124(d) (1999). In short, utilization review
provides a mechanism for employers to review and evaluate the cost, reasonableness, and necessity
of medical services provided to employees in workers’ compensation cases. See Tenn. Code Ann.
§ 50-6-122(a)(1), (2) (1999).
2
Although Kilgore has also asserted that the issues are moot, NHC correctly argues that there is no factual basis
in the record upon which to support the contention . Acco rdingly, we will address the merits of the ap peal.
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Jurisdiction
We now turn to the pivotal issue in this case. As noted above, NHC argues that an appeal
of the decision made by its own utilization review program regarding Kilgore was limited to the
Commissioner’s utilization review pursuant to Tennessee Code Annotated section 50-6-124(d)
(1999). Kilgore, on the other hand, asserts that the Chancery Court had jurisdiction to hear this
matter.
Because these arguments involve interpretation of numerous statutory provisions, we will
first summarize familiar principles of statutory interpretation. When examining statutes, courts must
ascertain and give effect to the legislative intent without restricting or expanding the statute’s
intended meaning or application. Parks v. Tenn. Mun. League Risk Mgmt. Pool, 974 S.W.2d 677,
679 (Tenn. 1998). If the language of the statute is unambiguous, courts must apply its ordinary and
plain meaning. Id.; see also Niziol v. Lockheed Martin Energy Sys., Inc., 8 S.W.3d 622, 624 (Tenn.
1999). If the language is ambiguous, however, the court must examine the entire statutory scheme
and the legislative history to ascertain and give effect to the legislative intent. Parks, 974 S.W.2d
at 679.
We begin our statutory analysis in this case with Tennessee Code Annotated section 50-6-
124(d), which provides as follows:
Nothing in this section shall prevent an employer from electing to
provide utilization review; however, if the employee, provider or any
other party not contractually bound to the employer’s utilization
review program disagrees with that employer’s utilization review,
then that employee, provider or other party shall have recourse to the
commissioner’s utilization review program, as provided for in this
section.
(emphasis added).
After examining the statute, we conclude that NHC’s argument that appeal of a medical
services decision made by its utilization review program lies solely with the Commissioner’s
utilization review program is not supported by the plain and ordinary meaning of section 50-6-
124(d). The statute provides that an employee (or a medical provider or other party) who disagrees
with a determination made by an employer’s utilization review “shall have recourse” to the
Commissioner’s utilization review program. Although the phrase “shall have recourse” is not
defined in this statutory section or elsewhere, the plain and ordinary meaning of the section does not
replace or limit judicial review. For instance, section 50-6-124(d) could have but does not state that
review by the Commissioner is the sole or exclusive means of appealing an employer’s utilization
review decision, nor does the statute state that seeking recourse to the Commissioner is a condition
to appealing to the court that had jurisdiction of the workers’ compensation claim. Indeed, had the
legislature intended for recourse to the Commissioner’s utilization review program to be the
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only means of appeal, thereby divesting the trial court of jurisdiction to enforce its own judgment,
it would have stated so in plain and ordinary language.
We also conclude that NHC’s argument for limiting an appeal of its utilization decision to
the Commissioner’s utilization program is inconsistent with the statutory scheme of the Workers’
Compensation Act. For example, one section of the Act, Tennessee Code Annotated section 50-6-
204(a)(1) (Supp. 2003), states that an employer “shall furnish free of charge . . . such medical and
surgical treatment . . . ordered by the attending physician . . . as may be reasonably required” for an
employee’s work-related injury. Part of the same statute, Tennessee Code Annotated section 50-6-
204(a)(5) (Supp. 2003), provides that “[a]ll cases of dispute as to the value of such services shall
be determined by the tribunal having jurisdiction of the claim of the injured employee for
compensation.” Similarly, in cases where there is “a dispute over or failure to agree upon
compensation . . ., either party may file a civil action in the circuit, criminal, or chancery court in the
county in which the employee resides or in which the alleged injury occurred.” Tenn. Code Ann.
§ 50-6-225(a)(1) (Supp. 2003).
The foregoing statutes provide for extensive review of claims and disputes in workers’
compensation cases by the court that has jurisdiction over the claim. See Tenn. Code Ann. §§ 50-6-
204(a)(5), 50-6-225(a)(a). Because the statute relied upon by NHC, Tennessee Code Annotated
section 50-6-124(d), does not expressly state that appeals of decisions made by an employer’s
utilization review program are solely or exclusively through the Commissioner’s utilization review
program, it must be construed harmoniously with the provisions that allow appeals in workers’
compensation matters.3 Moreover, we believe that granting employees recourse through the
Commissioner in addition to judicial review is consistent with the remedial purpose of the Workers’
Compensation Act. Tenn. Code Ann. § 50-6-116 (1999); see also McCall v. Nat’l Health Corp., 100
S.W.3d 209, 213 (Tenn. 2003) (holding that the trial court’s authority to initiate workers’
compensation benefits before the final adjudication was not divested by the legislature and was
consistent with the stated purpose of the Worker’s Compensation Act).
Accordingly, we conclude that the Chancellor’s ruling that he had jurisdiction to decide this
case was consistent with the language of Tennessee Code Annotated section 50-6-124(d) (1999) and
the provisions and purpose of the Workers’ Compensation Act.
CONCLUSION
After reviewing the record and applicable authority, we hold that the Chancery Court had
jurisdiction to consider the employee’s appeal from the decision of the employer’s utilization review
3
Although NHC corre ctly asserts that a specific statutory provision will often prevail over the terms of a more
general statute, this statutory interpretation principle is inapplicable given our conclusion that the plain and ordinary
language of Tennessee Code Annotated section 50-6-124(d) does not provide a specific and exclusive mechanism for
seeking reco urse in utilization review ca ses.
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program. We therefore affirm the judgment. Costs of this appeal are taxed to the appellant, NHC
Healthcare, and its surety, for which execution shall issue if necessary.
____________________________________
E. RILEY ANDERSON, JUSTICE
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