WORKERS' COMPENSATION NEWS
In addition to the information you can find on this page, the firm publishes a bi-monthly workers’ compensation newsletter, which is distributed to clients and other interested parties. The newsletter summarizes up-to-the-minute developments in Tennessee workers’ compensation law in both the courts and the legislature, and provides information on developments in medical and vocational testimony.
JUNE 2011
On June 6, 2011, Governor Haslam signed into law the bill Manier & Herod attorneys participated in drafting regarding: 1) Closing medicals; 2) the ability to talk to our doctors; and 3) defining and limiting repetitive motion injuries. The bill also creates a presumption that the panel doctor’s opinion regarding causation is correct (the presumption is rebuttable by a preponderance of the evidence). The new law only applies to injuries occurring after June 6, 2011, the date the bill was signed into law. For a detailed explanation of the new law, please see our latest newsletter .
CLICK HERE to read the Newsletter
MAY 2011
Significant Legislative Changes Impact Tennessee Workers’ Compensation Law
Manier & Herod Drafts Legislation addressing Overstreet, Closure of Future
Medical Benefits
On May 21, 2011, the legislature passed the most extensive statutory reform since 2004. Although all of the concerns raised have not been fully addressed, these statutory changes will significantly improve the Tennessee Workers’ Compensation Law in favor of the employers and carriers. The new legislation essentially addresses four major areas, including future medical benefits, communication with doctors, gradual injuries, and causation:
(1) Settlement of Future Medical Benefits.
The revised version of Tenn. Code Ann. §50-6-206(a)(2) eliminates the current prohibition against closing out future medical benefits immediately in most cases. The statute previously required parties to leave future medical benefits open for at least three (3) years for injuries to scheduled members with a statutory value of 200 weeks or more, as well as injuries to the body as a whole. Under the prior law, the parties could immediately settle future medical benefits only in cases where the injury is to a scheduled member with a statutory value of 199 weeks or less, or in cases that are settled on a doubtful and disputed basis.
The new law eliminates the three (3) year open medical benefits provision. Tenn. Code Ann. §50-6-206(a)(2) has been revised to state:
Nothing in this Section shall be construed to prohibit the parties from compromising and settling at any time the issue of future medical benefits. The settlement agreement must be approved by a trial court, the Commissioner, or the Commissioner’s designee, with the specific findings that Medicare and TennCare liability or consequences to the claimant have been addressed specifically in the order approving the settlement.
The only prohibition is that parties may not close an injured employee’s future medical benefits in a case of permanent total disability. There are otherwise no restrictions against closing future medical benefits at any point, or in allocating an additional payment to the injured employee in exchange for the agreement to waive the right to future medical treatment.
Under the prior law, parties could only settle doubtful and disputed cases for a maximum lump sum payment of fifty (50) times the statutory minimum compensation rate. The revised Tenn. Code Ann. §50-6-206(b) eliminates the current ceiling for settling doubtful and disputed claims. Parties are now free to settle disputed claims in full for any agreed upon amount.
(2) Communication with Doctors.
The revised statute makes it easier for employers, carriers and their representatives to communicate with authorized doctors, as Tenn. Code Ann. §50-6-204 has been revised in several places to address the issues resulting from the decision in Overstreet v. TRW Commercial Steering Division, 256 S.W.3d 626 (Tenn. 2008). These new provisions almost return the state of the law to the pre-2008 amendments. In 2008, the legislature codified the Overstreet decision and placed significant limitations on employers, carriers and their representatives speaking with authorized physicians. Such parties were not allowed to communicate with an authorized physician in a claim without first obtaining a Department of Labor approved written authorization from the employee. If the employer or carrier communicated with the physician in writing, a copy of the written document was to be provided to the injured employee or the employee’s attorney. If the communication between the employer or carrier and the physician was verbal, the law set forth specific requirements for notifying the employee or the employee’s attorney of the substance of the conversation.
Under the new version of Tenn. Code Ann. §50-6-204, employers, carriers and their representatives may once again communicate with authorized physicians. The injured employee must first sign a Department of Labor approved medical authorization. Tenn. Code Ann. §50-6-204 (2)(C) now states:
(i) An employee claiming workers’ compensation benefits or any attorney representing the employee shall be entitled to obtain medical information, records, professional opinions, or reports from or communicate in writing or in person with, any medical provider who has treated or provided medical care to the employee; provided, that the employee executes and provides the medical provider with an appropriate written authorization; an employee claiming workers’ compensation benefits or any attorney representing the employee shall be entitled to obtain medical information, records, or reports from, or communicate in writing or in person with, any medical provider who has treated or provided medical care to the employee;
(ii) Any medical provider authorized by the employer pursuant to this section and who has treated or provided medical care to an employee claiming workers’ compensation benefits shall communicate, orally or in writing, with the employer or any attorney representing the employer, and shall honor any request by the employer for medical information, medical records, professional opinions, or medical reports pertaining to the claimed workers’ compensation injury. Oral communication may be achieved, but is not limited to telephone or an in-person meeting.
The only significant restriction on these communications is that the employer, carrier or their representative must provide the injured employee or the employee’s attorney with any “written memorandum, or visual or recorded materials” that are provided to the authorized treating physician for review. This production must take place no later than ten (10) days in advance of any deposition or live court appearance.
The new version of the statute makes it clear that “no relevant information developed in connection with authorized medical treatment or examination provided pursuant to this section for which compensation is sought by the employee shall be considered a privileged communication and no medical provider shall incur any liability as a result of providing medical information, medical records, professional opinions, or medical reports” pursuant to this statute.
(3 ) Limitation on What Constitutes a Compensable Injury.
Through an amendment to the definition of “injury”, the new legislation significantly limits the scope of what constitutes a compensable injury, especially gradual injuries. Tenn. Code Ann. §50-6-102(12) previously stated:
“Injury” and “personal injury” mean an injury by accident arising out of and in the course of employment that causes either disablement or death of the employee an shall include occupational diseases arising out of and in the course of employment that cause either disablement or death of the employee and shall include a mental injury arising out of and in the course of employment.
This section of the statute has been significantly revised and now states:
“Injury” and “personal injury” means an injury by accident arising out of and in the course of employment that causes either disablement or death of the employee. “Injury” and “personal injury” shall not include a disease in any form, except when it arises out of and in the course and scope of employment. “Injury” and “personal injury” include a mental injury arising out of and in the course of employment. An injury is “accidental” only if it is caused by a specific incident (or incidents) arising out of and in the course of employment and is identifiable by time and place of occurrence. Cumulative trauma conditions, hearing loss, carpal tunnel syndrome, and all other repetitive motion conditions shall not be considered an “injury” or “personal injury” unless such conditions arose primarily out of and in the course and scope of employment.
Thus, the new statute narrows the definition of "injury" to "a specific incident or incidents arising out of and in the course of employment, and is identifiable by time and place of occurrence.”
The revised statute also places significant limitations on the compensability of cumulative trauma conditions and repetitive or gradual injuries. Tenn. Code Ann. § 50-6-102(12) now provides that “[c]umulative trauma conditions, hearing loss, carpal tunnel syndrome, and all other repetitive motion conditions” are no longer compensable injuries in Tennessee unless these conditions arose primarily out of and in the course of employment. This is the legislature’s first attempt at limiting the scope of compensable gradual injuries.
(4) Causation to be Determined by Authorized Treating Physician.
The revised statute now provides that the authorized treating physician’s opinion on causation is presumed to be correct. Tenn. Code Ann. §50-6-102(12) has been amended to include the following language, which was previously excluded from the statute:
The opinion of the physician selected by the employee from the employer’s designated panel of physicians pursuant to 50-6-204(a)(4)(A), (B) shall be presumed correct on the issue of causation and shall only be defeated by a preponderance of the evidence to the contrary.
Thus, the panel chosen physician’s opinion on causation is presumed to be correct, and can only be defeated by a preponderance of the evidence. Considering the new limitations on gradual injuries, the authorized physician’s opinion on causation is paramount.
JULY 2010 Proposed Rules for Certification of Workers’ Compensation Adjusters in Tennessee
- CLICK HERE for Proposed Rules
D. Workers' compensation requirements for construction workers.
SB3336/HB3525, Public Chapter No. 792. A bill passed in 2008 that was intended to require that all construction workers be covered by workers’ compensation. However, many solo employers complained that the coverage was too expensive. The House and Senate have agreed upon a bipartisan bill that allows sole proprietors, partners, LLC members, etc. to exempt themselves from the workers’ compensation coverage requirements. This involves specific filings with the Secretary of State’s office. The bill has been sent to the Governor for signature.
TENNESSEE WORKERS' COMPENSATION NEWSLETTERS:
LEGISLATIVE UPDATES:
FALL 2009 - Tennessee Workers' Compensation Legislative Update: New Laws Change Workers' Compensation Practice
- CLICK HERE for a copy of the slide presentation.
FALL 2009 - The Tennessee Department of Labor has formulated new rules for Utilization Review. These rules contain significant changes, including the provision that the physician doing the utilization review must be licensed in the state of Tennessee.
- Utilization Review Rules from the TN Dept of Labor - effective November 12, 2009
STATUTES:
- SB 2928 / Public Ch. 920 (2010)
- SB 2943 / Public Ch. 1034 (2010)
- SB 3162 / Public Ch. 720 (2010)
- SB 3731 / Public Ch. 858 (2010)
OTHER IMPORTANT UPDATES AND INFORMATION:
NEW WORKERS' COMPENSATION RATES, effective July 1, 2010:
- TTD Max Benefits - $841.50 or 110% of the state's average weekly wage
- PPD Max Benefits - $765.00 or 100% of the state's average weekly wage
- Minimum Weekly Benefit - $114.75