new tennessee workers compensation laws effective july 1, 2014 deana c. seymour rainey kizer reviere...

New Tennessee Workers

Compensation LawsEffective July 1, 2014

Deana C. Seymour Rainey Kizer Reviere & Bell, PLC

dseymour@raineykizer.com731-426-8118

September 15, 2015

Before we look at the new law, a

little history lesson:

The First TN Workers’ Comp Law

Signed into law by Governor Albert H. Roberts in 1918. Interestingly, he lost his reelection effort

the following year.

Tennessee Workers’ Comp

From the outset, it was a court-managed and court-resolved system.

Over the course of the next 80 or so years, our system in TN has taken

many twists and turns. Until 2014, it has remained at least a hybrid, court

based system.

2004 Changes

The most sweeping changes before now came in 2004. Most of those laws and rules have governed us for the last

10 years.

Key Parts of the 2004 changes:

• Limit on closing future meds• Creation of the BRC process• Creation of the MIR process• And various tweaks every legislative

session

Some argued that “much needed changing.”

Biggest problem: 50-6-116

“remedial statute … given equitable construction”

What did the old approach mean for

employers and defense lawyers?

On July 1, 2014, new statutes took effect.

…IT’S A BRAND NEW DAY!

BRAND-NEW RULES:• MUCH IS GOOD FOR

EMPLOYERS BUT—

• MUCH TO LEARN AND TO KNOW!

Now an even playing field:

“[S]hall not be remedially or liberally construed but shall be

construed fairly, impartially, and in accordance with basic principles of statutory construction and . . . shall

not be construed in manner favoring either employee or

employer.”

Compensability Standard

Under the new statute, the injury must arise “PRIMARILY” out of employment.

This means we have a standard that requires more than 50% in terms of proof.

“Could be related” is no longer the law.

Causation Presumption

The opinion of the authorized treating doctor (ATP) on causation is presumed correct, but this can be rebutted by a preponderance of the evidence.

What does a “preponderance of the evidence” mean?

This is the traditional standard of proof required in civil cases like car wrecks, etc.

Medical Necessity Presumption

Also, the opinion of the ATP on medical treatment is presumed medically necessary, rebutted only by clear and convincing evidence.

Utilization Review

Either party can still ask for Utilization Review. This means another doctor looks at necessity of treatment, and if the DOL guidelines are followed, the UR decision will be binding.

Contact with the Employee’s Medical Providers

The old rules have been all over the place:• freedom to contact• no right to contact• advance and follow-up notice of contact• limited right to contact.

Under the new rules:

Complete FREEDOM

A Word of Caution:

Now any communication (letter, emails, etc.) of any kind is wide open to both sides, so all correspondence should be written recognizing that the other party will see it.

So no Snapchat with the Doctor

Okay, so what do you do when you get notice of a new injury?

Begin investigation immediately, communicate with insurer; employee’s supervisor; witnesses; co-workers; and designate panel of physicians quickly. Reason?

Penalty:

Failing to provide an initial panel within 5 business days from date

of notice =

Potential $5,000 Fine

• This is 5 days from notice of the injury. So if the employer fails to let its insurer or TPA know of the injury, a penalty may result.

• Must get appropriate people involved immediately.

• Initial rule version had 3-day deadline.

Claim reps generally will provide a panel of doctors. However, employers may assume that responsibility.

Panel of Physicians

The new law no longer requires that you add a chiropractor, and requires no specialists initially.

Panel of Physicians

The panel of doctors need only be 3 independent doctors from the community (or if none around, within 100 miles).

Panel of Physicians

Now what if your panel authorized doctor makes a referral to another specialist?

Panel of Physicians

• Under the new law, the employer has 3 business days (from date of receipt) in which to provide a new panel of specialists.

• Otherwise, the referred specialist becomes authorized.

So if the ATP sends a fax directly to you, the employer, referring to a specialist the clock starts ticking from receipt of that fax.

What’s the key lesson for us to learn from this?

Impairment Ratings

The new system is presumably less complicated. All injuries are

converted to the Body as a Whole. No longer do we talk about scheduled members or

body parts.

Impairment Ratings

Ratings are still assigned pursuant to AMA Guides.

Under the new rules for PPI, “pain” is not to be considered.

Impairment Ratings

• In setting the impairment rating, the ATP’s rating is presumed correct.

• This can be rebutted by a preponderance of the evidence standard.

MIRR

In recent years, we have been able to make use of the “Medical Impairment Rating Registry” (MIRR). This will still be available under the new law.

MIRR

• Now a dispute about impairment ratings allows either party to seek an MIR rating.

• The new law no longer requires that there be two competing ratings before you can seek an MIR.

Another historical term in TN is “Permanent Partial Disability.”

This is a really big change. Just remember:

Permanent Partial Disability

Under the new rules, the PPD is calculated as Body as a Whole based on 450 weeks.

THE NOW:

As soon as the employee reaches MMI and is given a PPI rating, they are immediately entitled to receive: the impairment rating x 450 weeks x the comp rate.

It doesn’t matter if back to work or not.

THE LATER:

After the number of weeks for the “now” lapses, we will look to see if the employee is back to work with ANY employer.

If not working with any employer, or if working for wages or salary less than 100% of that received from employer at the time of injury.

Not entitled to “Later” if:

*Employee loses job for misconduct.*Employee voluntarily resigns or retires for reasons unrelated to work injury.

*Employee is still employed and reduced wages or hours affects at least 50% of employees.

Factors for calculating “Later”

Even more money if the employee fits criteria:

*No High School diploma or GED. 1.45*Over age 40 when “Now” ends. 1.2*Unemployment rate in community was 2% more than the state average for the year immediately before the period of compensation expired. 1.3

An employee must file a new Petition for Benefit Determination with the DOL within 1 year from the end of the “Now” number of weeks.

Parties are still entitled to settle PPD at any time after the employee reaches MMI.

Law still provides a mechanism for extraordinary award.

Older workers

Cap on benefits doesn’t start at age 60. The cap is for employees who are within five years before the date they are eligible for full social security old age benefits.

No more state court trials. If case doesn’t settle at mediation (no longer called BRC), it goes to WC Court. Appeal to State Supreme Court is still available.

WC Dispute Certification Notice

If no settlement at mediation, specialist issues a Dispute Certification.

Only the issues in the Dispute Certification can be raised at trial.

Worker’s Comp Trials

New workers comp judges can issue preliminary orders for benefits before having a full

evidentiary hearing.

WC Judges will resolve discovery disputes on written motions, no hearings on motions to compel.

THE OMBUDSMAN

• This is a new and unique part of the law. DOL will provide an ombudsman to employees who don’t have lawyers.

• They can’t practice law. • Potential civil penalties for failing to

cooperate with the ombudsman.

Penalties

Penalties for bad faith actions of employer, claims rep, or carrier:

*Arriving more than 30 min late for mediation.

*Listing doctors who won’t see employee.

*Providing panel late.*Failing to cooperate with Ombudsman.

This is very important. Remember our dog and cat?

What’s the key here?

Key points to be ready for this

1. Communicate

2. Prepare

3. Investigate

Let’s do an example:

New claim hits your desk/computer/voice mail. Date of injury is July 7, 2014. Bubba Jo Travis was reaching for a tool box in the shop when he heard a pop in his back and felt pain.

What’s the first thing you do after you complete the First Report of Injury?

Hint?

PANEL IN 5 BUSINESS DAYS!

Need a good list of doctors ready to go.

NEXT BIG QUESTION:

COMPENSABLE?

Under the new standard the injury must arise “primarily” out of the employment.

What if in our example, Bubba had been injured in his jet boat three days earlier on the 4th holiday. What if he had an ER visit making the same complaints?

What does the ATP need to know to say whether this alleged injury arises “primarily” out of the employment?

What info do we need to gather from employer, medical providers, or elsewhere?

From the start, outline the plan for your investigation.

What do you need?Who you need to talk to?

*Managers, Supervisors, co-workers, witnessesWhat about recorded statements?What about payroll and attendance records, info on prior claims?

Medical Treatment

1. Is the authorized doctor providing appropriate treatment?

2. Referrals? (Remember, panel in 3 business days or we are stuck!)

3. Has active treatment ended?(pain management only?)4. MMI?

Anatomical Impairment

Lets say Bubba’s treating doctor gives no impairment but places permanent restrictions on him. Now Bubba could ask for an MIR because you don’t need two competing ratings.

PPI:

Or, what if the authorized doctor gave a 10% and Bubba gets a 20% from his IME doctor? What does Bubba have to show to get to use this IME doc?

Must show by a preponderance of the evidence that the 10% is wrong.

PPD calculation

Lets use our 10% treating rating and a $250 comp rate. Once Bubba is at MMI, he immediately is entitled to 45 weeks of benefits at $250 CR ($11,250). This is the NOW.

Then do you wait or settle the whole claim? (Lawyer answer: it depends)

PPD calculation

Later: Say Bubba can’t return to old job but gets a job as a brain surgeon making the same or greater money. What’s he entitled to as the “Later” calculation?

PPD calculation

Later: What if Bubba took another job but is making less than he made with us? What is he entitled to in the “Later” calculation?

Let’s do the math together………...

The “Now”: $11,250, 45 weeks (10% x 450 x $250)

The “Later”: If all additional factors apply$11,250 x 1.35 x 1.45 x 1.2 x 1.3 = $34,354.12 – 11,250 = $23,104.13 “Later” award

Extraordinary PPD Benefits New Law: Prove 10% or greater rating, can’t return to prior occupation, not back to work making 70% of pre-injury wage

No more state court trials. If case doesn’t settle at mediation (no longer called BRC), it goes to WC court. Appeal to State Supreme Court is still available.

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