MASTER QUESTIONNAIRE

1. Citation for the Tennessee Workers’ Compensation law.

RESPONSE: Citation for the Tennessee Workers’ Compensation Law (“TWCL”) is TENN. CODE ANN. § 50-6-101, et seq.

2. Who are covered employees for purposes of the TWCL?

RESPONSE: TENN. CODE ANN. § 50-6-102(10)(A) “Employee" includes every person, including a minor, whether lawfully or unlawfully employed, the president, any vice president, secretary, treasurer or other executive officer of a corporate employer without regard to the nature of the duties of such corporate officials, in the service of an employer, as employer is defined in subdivision (12), under any contract of hire or apprenticeship, written or implied.

TENN. CODE ANN. § 50-6-102(10)(B) also provides that a sole proprietor or a partner that devotes full time to the business may elect to be considered an employee.

3. Identify and describe any “statutory employer” provision.

RESPONSE: An employer is “any individual, firm, association or corporation, or the receiver, or trustee of the same, or the legal representative of a deceased employer, suing the services of not less than five (5) persons for pay, except as provided in § 50-6-113, and in the case of an employer engaged in the mining or production of coal, one (1) employee for pay.” If the employer is insured, it shall include the employer’s insurer, unless otherwise provided in this Chapter. TENN. CODE ANN. § 50-6-109(12).

4. What types of injuries are covered and what is the standard of proof for each?

RESPONSE: Injuries arising out of and in the course of employment are compensable. TENN. CODE ANN. § 50-6-103. Causation in all but the most obvious cases requires medical proof. Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn. 1991). Expert proof that work could have caused or aggravated the condition is enough, if there is supporting lay testimony or other evidence from which the causal connection may be reasonably inferred. GAF Bldg. Materials v. George, 47 S.W.3d 430 (Tenn. 2001. Moreover, T.C.A. § 50-6-116 provides that the TWCL “be given an equitable construction by the courts.” The Tennessee Supreme Court has cited this provision innumerable times as support for interpreting the law in a manner favorable to the employee or the employee’s dependants. Crump v. B&P Cousl. Co., 703 S.W.2d 140, 144 (Tenn. 1986). However, the burden of proof rests on the party claiming benefits under the TWCL to establish by a preponderance of the evidence that the injury by accident or occupational disease arose out of the employment and occurred in the course of employment. Parker v. Ryder Truck Lines, Inc., 591 S.W.2d 755 (Tenn. 1979).

The TWCL also addresses claims based upon an “occupational disease” as a basis for recovery. Tenn. Code Ann. § 50-6-301. The occupational disease must originate from the employment risk. Tenn. Code Ann. § 50-6-301(5).

5. What, if any, injuries or claims are excluded?

RESPONSE: Injuries caused by willful misconduct, intentional self-inflicted injury, intoxication or illegal drugs, or willful failure or refusal to use a safety appliance or perform a duty required by law are not compensable. TENN. CODE ANN. § 50-6-110. Additionally, an employee who misrepresents his or her physical condition in an application for employment may be denied compensation. Federated Cooper & Aluminum Co. v. Dickey, 493 S.W.2d 463.465 (Tenn. 1973).

6. What psychiatric claims or treatments are compensable?

RESPONSE: Identifiable and stressful work-related event producing “mental stimulus such as fright, shock or even excessive, unexpected anxiety could amount to an ‘accident’ sufficient to justify an award for a resulting mental or nervous disorder.” Jose v. Equifax, Inc., 556 S.W.2d 82, 84 (Tenn. 1977). Compensation is not limited to cases where there is a physical injury. Id. However, “worry, anxiety or emotional stress of a general nature” is not compensable. Allied Chem. Corp. v. Wells, 578 S.W.2d 369 (Tenn. 1979).

7. What are the applicable statutes of limitations?

RESPONSE: A claim must be filed within one year after the accident that caused the compensable injury or the date of the issuance of the last voluntary payment of compensation. TENN. CODE ANN. § 50-6-203. The 2004 amendments to the TWCL, effective as of January 1, 2005, provide that a request for a benefit review conference, rather than a lawsuit, be filed on a form prescribed by the commissioner to avoid a claim being barred by the statute. The 2004 amendments also extend the tolling period after a report on a benefit review conference from 30 to 90 days. Although the date of the accident is the critical date for the purpose of the statute of limitations, the year period does not begin to run until “the employee by a reasonable exercise of diligence and care, would have discovered that a compensable injury had been sustained.” Bellar v. Baptist Hosp., 559 S.W.2d 788, 789-90 (Tenn. 1978). This normally does not occur until a physician has given the employee a diagnosis. Poore v. Magnavox Co. of Tennessee, 666 S.W.2d 48, 51 (Tenn. 1984). The start date for the statute of limitations may change in Second Injury Fund cases. Gibson v. Swanson Plating & Mach., 819 S.W.2d 796 (Tenn. 1991).

In occupational disease cases, the right to compensation is barred unless suit is commenced within one year “after the beginning of the incapacity for work resulting from an occupational disease.” TENN. CODE ANN. § 50-6-306.

In death cases, the dependents’ suit for benefits must be brought within one year of the date that the employer gave notice to the Division of Workers’ Compensation of his willingness to pay compensation due under the Law. TENN. CODE ANN. § 50-6-224(2).

An employer’s conduct may cause tolling of the statute of limitations. TENN. CODE ANN. § 50-6-203(a).

8. What are the reporting and notice requirements for those alleging an injury?

RESPONSE: Unless the employer has actual knowledge of the injury or the employee has a reasonable excuse for not giving notice, an employee is required to give written notice of the injury to the employer within thirty days after the injury-causing accident. TENN. CODE ANN. § 50-6-201. Once notified of an alleged injury, the employer/insurer must file a First Report of Injury (Form C-23) with the Tennessee Department of Labor and Workforce Development.

9. Describe available defenses based on the employee’s conduct.

A. Willful Misconduct

RESPONSE: If an employee’s injury is caused by calculated and intentional wrongdoing such as deliberate violation of a safety rule, the employee may not recover under the TWCL. Gross negligence is not enough to bar recovery. TENN. CODE ANN. § 50-6-110(a); Wright v. Gunther Nash Mining Construction Co., 614 S.W.2d 796, 799 (Tenn. 1981).

B. Intentional Self-Inflicted Injury

RESPONSE: This defense usually only occurs with suicide cases. Suicide after a compensable injury may also be compensable if the injury produces mental derangement that causes the suicide attempt or where the employee is so affected by the stress of the workplace that he kills himself. Wheeler v. Glens Falls Ins. Co., 513 S.W.2d 179 (Tenn. 1974).

C. Intoxication or Illegal Drug Use

RESPONSE: If the injury is due to intoxication or illegal drugs, it is not compensable. TENN. CODE ANN. § 50-6-110(a). Intoxication need not be the sole cause, but must be the proximate cause of the injury. Overall v. Southern Subaru Star, Inc., 545 S.W.2d (Tenn. 1976). If the employer participates in the Tennessee Drug-Free Workplace Program, and an employee that is injured tests positive for drugs or alcohol, the employer gets the benefit of a rebuttable presumption that the drugs or alcohol caused the accident. TENN. CODE ANN. § 50-9-101 through 111.

D. Willful Failure or Refusal to Use a Safety Appliance

RESPONSE: The employer must prove (1) that it had a policy in effect at the time of the accident requiring the employee to use a particular safety appliance; (2) the employer strictly enforced the policy; (3) the employee had actual knowledge of the policy, including training by the employer to give the employee knowledge of the potential danger of violation; and (4) the employee willfully and intentionally failed or refused to follow the established policy requiring the use of the safety appliance. Nance v. State Indus., Inc., 33 S.W.3d 222, 226 (Tenn. 2000). The injury may be compensable if the employee had a legitimate excuse.

E. Willful Failure or Refusal to Perform a Duty Required by Law

RESPONSE: The employer must prove that the employee breached a duty. However, this exception is not strictly applied and recovery has been allowed when an employee was in a traffic accident traveling in excess of thirty miles over the speed limit. TENN. CODE ANN. § 50-6-110(a).

F. Misrepresentation of Physical Condition

RESPONSE: An employee who misrepresents his or her physical condition in their employment application may be estopped from recovery under the TWCL. For the exception to apply, the employer must show (1) that the employee willfully made a knowingly false representation as to his physical condition; (2) the employer relied on the representation; (3) there was a causal connection between the representation and the injury. Federal Copper & Aluminum v. Dickey, 493 S.W.2d 463, 465 (Tenn. 1973).

10. What, if any, penalties or remedies are available in claims involving fraud?

RESPONSE: Intentionally failing to pay a workers’ compensation claim, fraudulent statements or misrepresentations and certain other acts are considered fraudulent insurance acts and can be punished as theft. TENN. CODE ANN. § 56-47-103; 105. An order approving a settlement and awards of compensation may be set aside for fraud. TENN. R. CIV. PRO. 60.02; Wooley v. Gould, Inc., 654 S.W.2d 669 (Tenn. 1983). Furthermore, TENN. CODE ANN. § 56-6-127(b) provides that the division of workers’ compensation shall investigate workers’ compensation fraud and refer cases to the appropriate law enforcement agency.

11. Is there any defense for falsification of employment records regarding

medical history?

RESPONSE: Yes. See 9F above.

12. Are injuries during recreational and other non-work activities paid for or supported by the employer compensable?

RESPONSE: If the activity directly or indirectly benefits the employer, recreational, social, and personal comfort activities are compensable. Tucker v. Acme Boot Co., 856 S.W.2d 703, 705 (Tenn. 1993).

13. Are injuries by co-employees compensable?

RESPONSE: Yes, if the injury is caused by a dispute over some aspect of employment. W.S. Dickey Manufacturing, Inc. v. Barnes, 187 S.W.2d 610 (1945). However, if a co-employee assault is privately motivated, the assault does not arise out of employment. Brimhall v. Home Insurance Co., 694 S.W.2d 931 (Tenn. 1985).

14. Are acts by third parties unrelated to work, but committed on the premises, compensable (e.g. “irate paramour” claims)?

RESPONSE: The answer to this is unclear. The court will examine the origin of the injury to determine if it arose out of employment. McConnell v. Lancaster Bros., 42 S.W.2d 206 (1931). The employee must show some connection to the work other than the mere fact that their employment caused them to be in the place where the assault occurred. See Stark v. Memphis Light, Gas & Water, 1992 WL 384090 (Tenn. 1992); Hudson v. Thurston Motor Lines, Inc., 583 S.W.2d 597 (Tenn. 1979). The Tennessee Supreme Court has recognized that “the ‘course of employment’ includes not only the time for which the employee is actually paid but also a reasonable time during which the employee is necessarily on the employer’s premises while passing to or from the place where the work is actually done.” Lollar v. Wal-Mart Stores, Inc., 767 S.W.2d 143, 150 (Tenn. 1989). If an employer provides a parking area, the parking area is part of the employer’s premises, regardless of whether the area is also used by customers. Id. An employee injured on a public way while traveling from work to the parking area is also entitled to benefits. Copeland v. Leaf, Inc., 829 S.W.2d 140 (1992).

15. What criterion is used for calculating the average weekly wage?

RESPONSE: The average weekly wage is the average of the employee’s earnings in the 52 weeks before their injury. TENN. CODE ANN. § 50-6-102. If the employment has been sporadic or short, other methods such as dividing the wages by the weeks worked or using the wages of a comparable employee may be used. Id. Additionally, the TWCL provides that “[w]henever allowances of any character are made to any employee in view of wages are specified as part of the wage contract, they shall be deemed a part of such employee’s earnings.” Tenn. Code Ann. § 50-6-102(D).

16. How is the rate for temporary/lost time benefits calculated, including

minimum and maximum rates?

RESPONSE: The employee is entitled to sixty-six and two-thirds (66 2/3%) of his average weekly wage for the “period of time the employee’s injury prevents him from working and during which he is recuperating as far as the nature of his injury permits.” Roberson v. Loretto Casket Co., 722 S.W.2d 380, 383 (Tenn. 1986). Eligibility for benefits terminates when the employee reaches maximum recovery or when the employee returns to work. For injuries after July 1, 2005, the maximum weekly benefit rate for temporary disability benefits is sixty-six and two-thirds percent (66 2/3%) of the employee’s average weekly wage up to one hundred ten percent (110%) of the state’s average weekly wage - as determined by the Department. Tenn. Code Ann.§ 50-6-102(15)(A)(x)(b). For injuries occurring after July 1, 1993, the minimum weekly benefit rates for temporary disability is fifteen percent (15%) of the state’s average weekly wage - as determined by the Department. TENN. CODE ANN. § 50-6-102(17)(E).

17. How long does the employer/insurer have to begin temporary benefits from the date disability begins?

RESPONSE: No compensation other than medical benefits is allowed for the first seven days after injury, not including the date of injury. TENN. CODE ANN. § 50-6-205. However, if disability lasts for 14 days, compensation begins on the first day of disability. Temporary benefits must be received no later than 15 days after receipt of notice of the injury. Rule 0800-2-14.05 of the Tenn. Dept. of Labor Div. of Workers’ Compensation.

18. What is the “waiting” or “retroactive” period for temporary benefits?

RESPONSE: See Response to 17.

19. What is the standard/procedure for terminating temporary benefits?

RESPONSE: Temporary partial benefits are sixty-six and two-thirds percent (66 2/3%) of the difference between previous wages earned and the employee’s wage earning capacity after the injury subject to the statutory maximum (up to 400 weeks). If the employee is still disabled when he reaches maximum improvement, benefits end and the employee may be entitled to permanent total or partial disability. If compensation benefits are changed or terminated, the employer/insurer must file Form C-26 with the Tennessee Department of Labor and Workforce Development.

20. Is the amount of temporary total disability paid credited toward the amount entitled for permanent partial disability?

RESPONSE: No.

21. What disfigurement benefits are available and how are they calculated?

RESPONSE: “For serious disfigurement to the head, face, or hands … so altering the personal appearance of the injured employee as to materially affect his employability,” compensation of 66 2/3 percent of the average weekly wage for a period within the court’s discretion up to 200 weeks. Disfigurement from the loss of a scheduled member or that is otherwise specifically compensated in the TWCL is not considered disfigurement.

22. How are permanent partial disability benefits calculated, including the minimum and maximum rates?

RESPONSE: If the employer returns the employee to employment at a wage equal to or greater than the wage the employee received at the time of injury, the maximum permanent partial disability benefits that the employee may receive is one and one-half (1½) times the medical impairment rating. Tenn. Code Ann. § 50-6-241(d)(1)(A). Otherwise, the employee may receive up to six times the medical impairment rating. Tenn. Code Ann. § 50-6-24(d)(2)(A). The maximum total benefit - the sum of all weekly benefits to which the worker may be entitled - is 400 weeks times the maximum weekly benefit except in instances of permanent total disability.

A. How many weeks are available for scheduled members/parts, and the standard for recovery?

RESPONSE: Scheduled Injuries

First or index finger 35 weeks

Second or middle finger 30 weeks

Third or ring finger 20 weeks

Fourth or little finger 15 weeks

Great toe 30 weeks

Any other toe 10 weeks

Hand 150 weeks

Arm 200 weeks

Foot 125 weeks

Leg 200 weeks

Eye 100 weeks

Hearing (one ear) 75 weeks

Hearing (both ears) 150 weeks

*Body as a whole 400 weeks

B. Number of weeks for “whole person” and standard for recovery?

RESPONSE: See chart.

23. Are there any requirements/benefits for vocational rehabilitation, and what is the standard for recovery?

RESPONSE: No.

24. How are permanent total disability benefits calculated, including the

minimum and maximum rates?

RESPONSE: The employee is entitled to benefits until he or she is eligible for benefits under the Old Age Insurance Benefit Program under the Social Security Act. However, if the employee is over 60 when the injury occurs, benefits are for 260 weeks. Tenn. Code Ann. § 50-6-207(4)(A)(i).

25. How are death benefits calculated, including the minimum and maximum rates?

A. Funeral expenses?

RESPONSE: Burial expenses cannot exceed $7,500.

B. Dependency claims

RESPONSE: When an injury results in the death of a covered employee, the widow or widower or dependent orphan is entitled to fifty percent (50%) of the deceased employee's average weekly wage, not to exceed the maximum per week. If the deceased employee leaves a widow/widower and one or more dependent children, sixty-six and two-thirds percent (66 2/3%) of the deceased employee's average weekly wages, not to exceed the maximum per week, is due. If a deceased employee leaves other relatives dependent on the employee for support, compensation may also be payable to those dependents. When the deceased employee leaves no dependents, Twenty Thousand Dollars ($20,000.00) shall be paid to his or her estate.

26. What are the criteria for establishing a “second injury” fund recovery?

RESPONSE: The Second Injury Fund addresses two situations: First, where the employee had previously sustained a permanent physical disability and then becomes permanently and totally disabled through a second, subsequent injury. Second, where an employee receives successive awards for permanent partial disability, ostensibly apportioned to the body as a whole, and the awards total more than 100 percent.

27. What are the provisions for re-opening a claim for worsening of condition, including applicable limitations periods?

RESPONSE: Settlements, lump sum awards, and all awards calling for periodic payments not exceeding six months are final. TENN. CODE ANN. § 50-6-230. Awards of periodic payments of more than six months may be modified if there is an “increase or decrease of incapacity due solely to the injury.” TENN. CODE ANN. § 50-6-231. For injuries arising after July 1, 2004, if an employee receives an injury to the body as a whole subject to the cap of 1.5 times the permanent impairment rating when the employee returns to work and the claim is settled, but the employee subsequently loses his or her job within 400 weeks of the date of their return to work, the employee may apply for reconsideration unless the employee loses his or her job because of a voluntary separation or retirement or because of misconduct.

28. What situation would place responsibility on the employer to pay an

employee’s attorney’s fees?

RESPONSE: The employee is responsible for paying his own attorneys’ fees. However, if an employer fails to provide appropriate medical care pursuant to a settlement or judgment, the employer may be liable for attorneys’ fees and costs for seeking judicial relief. TENN. CODE ANN. § 50-6-204(b)(2).

29. Is the compensation remedy exclusive?

A. Scope of immunity

RESPONSE: Yes, of all other rights and remedies. TENN. CODE ANN. § 50-6-108.

30. Are there any penalties against the employer for unsafe working conditions?

RESPONSE: An employer is required to have a “safety committee” and may be assessed a civil money penalty for failure to comply.

31. What penalty, if any, for an injured minor?

RESPONSE: None.

32. What is the potential exposure for “bad faith” or claims handling?

RESPONSE: Yes, if the employer fails to pay, or untimely pays, temporary disability benefits within twenty (20) days after the employer has knowledge of any qualifying disability, a civil penalty may be assessed and, if assessed, it shall be equal to twenty-five percent (25%) of the benefits not paid. TENN. CODE ANN. § 50-6-205(3)(A). Moreover, the TWCL requires the employer/insurer to immediately notify the Department of Labor and Workforce Development, on forms proscribed by the Department, of the initiation of, change in, or cessation of payment of benefits. Failure to file such notice is a misdemeanor punishable by a fine of not more than Fifty Dollars ($50.00). TENN. CODE ANN. § 50-6-205(c)(1)-(2)

33. What is the exposure for terminating an employee who has been injured?

RESPONSE: Employers cannot retaliate against employees for filing a claim and can be liable for retaliatory discharge. See Morris v. Columbia Constr. Co., 109 S.W.3d 314 (Tenn. Ct. App. 2003). However, an employee cannot maintain a retaliatory discharge claim based on the filing of a workers’ compensation claim unless the employee can prove that the filing of the workers’ compensation claim was a factor in their termination. Anderson v. Standard Register Co., 857 S.W.2d 555, 559 (Tenn. 1993). Thus, an employer may terminate an employee under a non-retaliatory absence control policy for an absence caused by a work-related injury. Id. There is also a state law that prohibits handicap discrimination. TENN. CODE ANN. § 8-50-103.

34. Can third parties be sued by the employee?

RESPONSE: Yes, and the employer is entitled to subrogation. TENN. CODE ANN. § 50-6-112.

35. Can co-employees be sued for work related injuries?

RESPONSE: Negligent co-employees cannot be sued.

36. Is subrogation available?

RESPONSE: See Response to 34.

37. Is there a time limit for medical bills to be paid, and are penalties available for late payment?

RESPONSE: All medical costs owed must be paid within 45 days of receipt of the bill or invoice. Rule 0800-2-14.07 of the Tenn. Dept. of Labor Div. of Workers’ Compensation.

38. What, if any, mechanisms are available to compel the production of medical information (reports and/or authorization) at the administrative level?

RESPONSE: There is no administrative agency in Tennessee. Section 50-6-204 provides that physicians shall provide the employer with the employee’s medical records upon request. See also TENN. R. CIV. PRO. 45.02 (providing for subpoenas to produce documents).

39. What is the rule on choice of physician?

RESPONSE: If the employer provides a panel of three reputable physicians, the employee must select one. Generally, if the employee refuses to accept the treatment, his right to compensation is suspended. The 2004 amendments to the TWCL require the employer to present the employee with its panel in written form and to document, with the employee’s signature, which physician the employee selects.

40. What is the standard for covered treatment (e.g. chiropractic care, physical therapy, etc.)?

RESPONSE: The treatment must be reasonably necessary.

41. Which prosthetic devices are covered, and for how long?

RESPONSE: All prosthetic devices which are reasonably necessary.

42. Are vehicle and/or home modifications covered as medical expenses?

RESPONSE: If reasonably necessary.

43. Is there a medical fee guide, schedule, or other provisions for cost

containment?

RESPONSE: The 2004 amendments to the TWCL provide that a fee schedule be developed, effective July 1, 2005. There is also a Cost Containment Committee, which has been increased to 14 members under the new law.

44. What is the procedure for contesting all or part of a claim?

RESPONSE: Tennessee uses the judicial process and does not have an agency or commission. The employer, insurer, or employee may file suit, but only after exhausting the benefit review conference process. However, once a claim is denied, the employer/insurer must file Form C-23 Notice of Denial of Claim for Compensation with the Department.

45. Method of adjudication:

A. Administrative level

RESPONSE: There is no administrative agency in Tennessee. However, under the 2004 amendments to the TWCL, no case may be filed until a benefit review conference has been held. The new law also requires the Workers’ Compensation Advisory Council to review replacing Tennessee’s current system with an administrative commission or review board.

B. Trial court

RESPONSE: Suit may be filed in Chancery or Circuit Court. TENN. CODE ANN. § 50-6-225. The 2004 amendments eliminated the jurisdiction of the criminal courts to hear workers’ compensation claims.

C. Appellate

RESPONSE: Appeal of a workers’ compensation decision is to the Supreme Court. The Supreme Court is authorized to refer workers’ compensation cases to the Special Workers’ Compensation Appeals Panel to make findings of fact and conclusions of law that the Supreme Court may accept or reject.

46. What are the requirements for stipulations or settlements?

RESPONSE: Settlements must be in writing and must be approved by a court or by the Commissioner of the Department of Labor and Workforce Development. TENN. CODE ANN. § 50-6-206(c).

47. Are full and final settlements with closed medicals available?

RESPONSE: Yes, on a limited basis. For injuries arising after July 1, 2004, disputed and controverted claims may be settled if the total amount paid is no more than fifty (50) times the minimum weekly benefit as of the date of the claimed injury. Employees who settle pursuant to this section have no right to future medical benefits. In all other cases, an employee is prohibited from selling his or her right to future medical benefits until three years after the settlement is approved with regard to injuries to schedule members with a value of two hundred (200) weeks or more and to body as a whole injuries. The right to future medical benefits for permanent total disability can never be closed. Medical benefits for schedule member injuries with a value of less than 200 weeks may be closed.

48. Must stipulations and/or settlements be approved by the state administrative body?

RESPONSE: The Commissioner of the Department of Labor and Workforce Development may approve settlements, or they may be approved by a Circuit Judge or Chancellor.

49. What insurance is required? What is available (e.g. private carriers, state fund, assigned risk pool, etc.)?

RESPONSE: All covered employers must maintain insurance with an authorized carrier or meet the requirements to be a certified self-insured employer. TENN. CODE ANN. § 50-6-405.

50. What are the provisions/requirements for self-insurance?

A. For individual entities?

RESPONSE: There is an application process and the self-insured employer is required to deposit negotiable securities in an amount not less than $125,000.00 or a bond in the same amount with the Department of Commerce and Insurance. The employer must also provide an annual certified financial statement to prove its ability to pay claims.

B. For groups or “pools” of private entities?

RESPONSE: Groups of 10 or more employers in the same trade or professional association may pool their liability to qualify as self-insurers.