State News : Tennessee

September 2022

Tennessee Appoints New Administrator and Workers’ Compensation Judge, Plus Other Recent Developments on the Firefighter Cancer Presumption and Mileage Reimbursement

New Administrator
Troy Haley, former Legislative Liaison of the Bureau, is now the new administrator for the Tennessee Bureau of Workers’ Compensation.  Troy succeeds Abbie Hudgens, who recently retired.

New Workers’ Compensation Judge in Memphis
Administrator Troy Haley has appointed Shaterra Reed Marion as a Judge on the Court of Workers’ Compensation Claims, the adjudicative function within the Tennessee Bureau of Workers’ Compensation (BWC). She will be located in the Memphis office of the BWC. Judge Marion has practiced law in Tennessee since 2012, primarily in workers’ compensation and insurance defense. She has been Field Counsel in Memphis for Liberty Mutual Insurance Company/Law Offices of Julie Bhattacharya Peak since 2014. She will replace the recently retired Judge Deana Seymour on the Court of Workers’ Compensation Claims in Memphis.

Firefighter Cancer Presumption
Effective July 1, 2022, Tennessee added leukemia and testicular cancer to the list of cancers (Non-Hodgkin’s Lymphoma cancer, colon cancer, skin cancer, and multiple myeloma cancer) for which a presumption is created that certain conditions or impairments of full-time firefighters arose out of employment, unless the contrary is shown by a preponderance of the evidence.

Mileage Reimbursement
Injured workers are entitled to request reimbursement for their travel expenses. Mileage reimbursement is a workers’ compensation benefit for injured workers who must travel outside a radius of 15 miles one way from their residence or workplace to an authorized medical provider or facility. The rate has been updated twice in 2022. For travel dates between January 2, 2022 to June 30, 2022, the reimbursement rate is $0.585 per mile.  For travel dates from July 1, 2022 to the present, the mileage reimbursement rate is $0.625.

For any questions, please contact:

Fredrick R. Baker, Member
Wimberly Lawson Wright Daves & Jones, PLLC
1420 Neal Street, Suite 201
P.O. Box 655
Cookeville, TN 38503-0655
Phone: 931-372-9123
Fax:  931-372-9181
fbaker@wimberlylawson.com
www.wimberlylawson.com    

March 2022

Tennessee Returns to In-Person Settlements

Since the establishment of the Tennessee Court of Workers’ Compensation Claims in 2014, the Court followed a strict rule that settlement approval hearings should be conducted in-person.  Telephone hearings were only permitted under extraordinary circumstances. Workers’ Compensation Judges have a duty to ensure that settlements provide injured workers with substantially the benefits to which they are entitled under Tennessee law, and to ensure that settlements are in the injured workers’ best interests. The Court has long believed that in-person settlement approval hearings were the best way to fulfill this duty, since it allowed Judges to see the workers, listen to them, and observe their non-verbal communication. 

Of course, that was until the COVID-19 pandemic. The pandemic forced the Court to quickly change direction and to start conducting settlement approval hearings by telephone. Though not as effective as in-person hearings, they were a necessity under the circumstances.

Fortunately, effective April 4, 2022, the Court will return to in-person settlement approvals. This will be the primary method for settlement approvals, just like before the pandemic.  Exceptions will be made only upon request and for good cause shown.

The Court has rolled out the procedure for scheduling in-person settlement approval hearings at each of the Court’s offices throughout the state of Tennessee.  For more detail, see the Court’s recent announcement via Blog:  https://wccourt.com/2022/03/15/returning-to-in-person-settlements-2/

For any questions, please contact:
Fredrick R. Baker, Member
Wimberly Lawson Wright Daves & Jones, PLLC
1420 Neal Street, Suite 201
P.O. Box 655
Cookeville, TN 38503-0655
Phone: 931-372-9123
Fax:  931-372-9181
fbaker@wimberlylawson.com
www.wimberlylawson.com

January 2022

New Mileage Reimbursement Rate for Tennessee Workers’ Compensation Claims

When an injured worker is required to travel to an authorized medical provider or facility located more than fifteen (15) miles from the injured worker's residence or workplace, then the employee may request reimbursement for their travel expenses.  Since 2011, the mileage reimbursement rate has been $0.47 per mile.  However, effective on January 2, 2022, that rate increased from $0.47 per mile to $0.585 per mile.

For any questions, please contact:

Fredrick R. Baker, Member
Wimberly Lawson Wright Daves & Jones, PLLC
1420 Neal Street, Suite 201
P.O. Box 655
Cookeville, TN 38503-0655
Phone: 931-372-9123
Fax:  931-372-9181
fbaker@wimberlylawson.com  
www.wimberlylawson.com

Effective October 19, 2021, the Tennessee Bureau of Workers’ Compensation adopted new regulations addressing the use of telehealth in the context of workers’ compensation claims. The purpose of the rules is to provide Tennessee workers’ compensation claimants with an option to utilize telehealth while treating for their injuries.

Under the regulations, telehealth may only be provided with the voluntary consent and agreement of the injured worker and the willingness of the healthcare provider. However, telehealth is not permitted for conditions which require an in-person physical examination. The regulations provide several examples of such conditions, including chest pain, significant burns, deformity of an extremity or suspicion of a fracture, and any bleeding that has not already stopped by direct pressure. However, this list is not exhaustive.

The treatment provided via telehealth is subject to utilization review and must follow all Tennessee standards of medical practice. The use of telehealth does not change any of the requirements for causation, date of maximum medical improvement, or permanent impairment ratings.

Employers are still subject to the same requirement to provide a medical panel to injured workers, and the panel must still include at least three medical providers who are qualified, willing, and able to timely treat the worker’s injury in person, but the panel doctors may also provide their services via telehealth with the employee’s consent. Before receiving medical benefits in the form of telehealth, the injured worker must be given an opportunity to receive in-person treatment. An injured worker may refuse a telehealth encounter at the time of the panel choice without affecting future care to which the injured worker is entitled.

The newly revised C-42 Medical Panel form also includes a space for an optional fourth choice of physician, which is a telehealth-only provider. However, this does not alleviate the employer’s obligation to still list three medical providers who can see the employee in person.

At any point during the initial visit or follow-up medical visits, the injured worker may refuse telehealth and request in-person care. If the authorized treating physician who is chosen from the medical panel declines to see the injured worker in person, the worker must select a new authorized treating physician from the names remaining on the original panel. The subsequent choice will become the new authorized treating physician.

The Tennessee Medical Fee Schedule applies to providers of telehealth services, and coding and billing regulations must follow the Medicare guidelines in effect for the date of service with no geographic qualifier.

These new regulations will have several practical effects on the way that employers, carriers, and third-party administrators handle their Tennessee claims, including:

-          Medical panels must now be provided on the newly revised medical panel form C-42, which may be found at https://www.tn.gov/content/dam/tn/workforce/documents/Forms/c42.pdf.

-       Regardless of these new telehealth rules, the medical panel still must include three or more doctors, surgeons, chiropractors, or specialty practice groups who are located in the employee’s community, and who are able to treat the employee in person.

-        When completing the medical panel form C-42 with the three medical providers who can see the injured worker in person, the medical panel form also requires that the employer indicate whether those providers also have a telehealth option, and if so, document that on the panel.

-       In addition to the three “in-person” medical providers, employers now have the option of including a fourth option, which is a telehealth-only option.  However, note that there are several types of medical conditions that cannot be treated by telehealth, and that the injured worker always retains the right to refuse the telehealth option.

For any questions, please contact:

Fredrick R. Baker, Member

Wimberly Lawson Wright Daves & Jones, PLLC
1420 Neal Street, Suite 201
P.O. Box 655
Cookeville, TN 38503-0655
Phone: 931-372-9123
Fax:  931-372-9181
fbaker@wimberlylawson.com
www.wimberlylawson.com

October 2021

Tennessee Enacts New Telehealth Regulations and New Medical Panel Form

Effective October 19, 2021, the Tennessee Bureau of Workers’ Compensation adopted new regulations addressing the use of telehealth in the context of workers’ compensation claims. The purpose of the rules is to provide Tennessee workers’ compensation claimants with an option to utilize telehealth while treating for their injuries.

Under the regulations, telehealth may only be provided with the voluntary consent and agreement of the injured worker and the willingness of the healthcare provider. However, telehealth is not permitted for conditions which require an in-person physical examination. The regulations provide several examples of such conditions, including chest pain, significant burns, deformity of an extremity or suspicion of a fracture, and any bleeding that has not already stopped by direct pressure. However, this list is not exhaustive.

The treatment provided via telehealth is subject to utilization review and must follow all Tennessee standards of medical practice. The use of telehealth does not change any of the requirements for causation, date of maximum medical improvement, or permanent impairment ratings.

Employers are still subject to the same requirement to provide a medical panel to injured workers, and the panel must still include at least three medical providers who are qualified, willing, and able to timely treat the worker’s injury in person, but the panel doctors may also provide their services via telehealth with the employee’s consent. Before receiving medical benefits in the form of telehealth, the injured worker must be given an opportunity to receive in-person treatment. An injured worker may refuse a telehealth encounter at the time of the panel choice without affecting future care to which the injured worker is entitled. 

The newly revised C-42 Medical Panel form also includes a space for an optional fourth choice of physician, which is a telehealth-only provider. However, this does not alleviate the employer’s obligation to still list three medical providers who can see the employee in person.

At any point during the initial visit or follow-up medical visits, the injured worker may refuse telehealth and request in-person care. If the authorized treating physician who is chosen from the medical panel declines to see the injured worker in person, the worker must select a new authorized treating physician from the names remaining on the original panel. The subsequent choice will become the new authorized treating physician.

The Tennessee Medical Fee Schedule applies to providers of telehealth services, and coding and billing regulations must follow the Medicare guidelines in effect for the date of service with no geographic qualifier.

These new regulations will have several practical effects on the way that employers, carriers, and third-party administrators handle their Tennessee claims, including:

- Medical panels must now be provided on the newly revised medical panel form C-42, which may be found at https://www.tn.gov/content/dam/tn/workforce/documents/Forms/c42.pdf. 

- Regardless of these new telehealth rules, the medical panel still must include three or more doctors, surgeons, chiropractors, or specialty practice groups who are located in the employee’s community, and who are able to treat the employee in person. 

- When completing the medical panel form C-42 with the three medical providers who can see the injured worker in person, the medical panel form also requires that the employer indicate whether those providers also have a telehealth option, and if so, document that on the panel.

- In addition to the three “in-person” medical providers, employers now have the option of including a fourth option, which is a telehealth-only option.  However, note that there are several types of medical conditions that cannot be treated by telehealth, and that the injured worker always retains the right to refuse the telehealth option.

April 2021

Tennessee Enacts Limited COVID-19 Presumption for Emergency Rescue Workers

Effective April 13, 2021, Tennessee enacted a limited presumption for emergency rescue workers, which provides that an emergency rescue worker who suffers a condition or impairment that is caused by an infectious disease is presumed to have a disability suffered in the line of duty, unless the contrary is shown by a preponderance of the evidence. However, there are several conditions for this presumption to apply:

1.       The “infectious disease” must be either the human immunodeficiency virus, the Hepatitis C virus, or one that has been recognized as a pandemic by the World Health Organization (WHO) or U.S. Centers for Disease Control and Prevention (CDC), and for which the Tennessee governor has declared a state of emergency.

2.       For purposes of this presumption, the term “emergency rescue worker” is defined as a person employed full-time by the state or any political subdivision of the state, as a firefighter, paramedic, emergency medical technician or emergency medical technician advanced. This does not include any person employed by a public hospital or by a subsidiary of a public hospital.

3.       The emergency rescue worker must verify by written declaration that the worker has not engaged in certain types of high-risk activities, such as blood transfusions, unsafe sexual practices, intravenous drug use, or non-work exposure through bodily fluids to a person known to have an infectious disease.

4.       The emergency rescue worker must, prior to diagnosis, have tested negative on medically accepted tests for the infectious disease for which the presumption is sought.

5.       For emergency rescue workers hired on or after July 1, 2015, the worker may be required to undergo a preemployment physical examination which includes a negative test for any evidence of infectious disease.

6.       The emergency rescue worker may be required to take a medically recognized vaccine or other form of immunization, unless the worker’s physician determines in writing that it would pose a significant risk to the worker’s health.

7.       The emergency rescue worker must file with the employer an incident or accident report of each instance of known or suspected occupational exposure for infectious disease within 7 days of the incident or accident occurring.

8.       The presumption shall apply to any emergency rescue worker following termination of service for a period of 1 year from the last date of service.

For any questions, please contact:

Fredrick R. Baker, Member
Wimberly Lawson Wright Daves & Jones, PLLC
1420 Neal Street, Suite 201
P.O. Box 655
Cookeville, TN 38503-0655
Phone: 931-372-9123
Fax: 931-372-9181
fbaker@wimberlylawson.com
www.wimberlylawson.com

November 2020

New Denial Form for Tennessee Workers’ Compensation Claims

Under prior regulations, Tennessee maintained two different forms for the denial of claims:

-  The C-23 Notice of Denial form was used when a claim was denied from the outset of the claim, with no benefits having been paid; and 

- The C-27 Notice of Controversy form was used when a claim was denied during the pendency of the claim, after some benefits had been paid.  

However, the C-27 Notice of Controversy form has now been eliminated. For all denials going forward, the adjusting entity should file the revised C-23 Notice of Denial form. This revised form will encompass denials for any claim, regardless of whether benefits have been paid. Likewise, this revised form will encompass partial denials, where only a particular aspect of the claim is being denied.

For any questions, or for a copy of the revised C-23 form, please contact:

Fredrick R. Baker, Member
Wimberly Lawson Wright Daves & Jones, PLLC
1420 Neal Street, Suite 201
P.O. Box 655
Cookeville, TN 38503-0655
Phone: 931-372-9123
Fax:  931-372-9181
fbaker@wimberlylawson.com
www.wimberlylawson.com

JULY 2020

2020 TENNESSEE WORKERS’ COMPENSATION LEGISLATIVE UPDATE

The Tennessee General Assembly passed two workers’ compensation bills in 2020.  Both implement important statutory changes.  For the most part, these changes tend to favor the injured worker.

I.    Tennessee Public Chapter 731 (Senate Bill 2190)

The more significant of the two workers’ compensation bills for 2020 was Senate Bill 2190.  This bill was signed by Governor Bill Lee on June 22, 2020.

A.    Period of Compensation for Permanent Partial Disability

Permanent partial disability (PPD) under the current workers’ compensation law is typically addressed at two separate points in the claim.  The original award of PPD is calculated simply by multiplying the impairment rating by 450 weeks, and then multiplying the result by the employee’s compensation rate. The result is a sum of money to which the employee is entitled regardless of his or her work status. However, the original award of PPD also creates a period of compensation, which is the amount of time represented by the original award.  For instance, if the employee has an impairment rating of two percent (2%) to the body as a whole, then the period of compensation is nine (9) weeks – because two percent (2%) of 450 weeks is nine (9) weeks.

The period of compensation will begin on the date of maximum medical improvement and will expire at a specified date in the future depending on the number of weeks involved.  On that date, the employee’s work status is examined, and if the employee is not back at work at the same or greater wages for any employer, then the employee may be entitled to additional PPD based on the application of certain enhancement factors for work status, age, education, and unemployment rate.  This additional PPD is referred to as the “resulting award” of PPD.

That two-part system looks fine on paper, but in practice, the system breaks down a bit when the employee has a small impairment rating.  For instance, if the employee has an impairment rating of one percent (1%), then the period of compensation is only four and a half (4½) weeks.  In many cases, that period will have come and gone before the impairment rating is even known, let alone allowing enough time to settle the original award and then subsequently examine the employee’s entitlement to a resulting award of PPD.

In Senate Bill 2190, the General Assembly has addressed this issue by adding an additional amount of time after which the employee’s entitlement to a resulting award of PPD will be determined.  That is, under the new law, the employee’s entitlement to a resulting award of PPD will be determined as of the date the period of compensation expires,or 180 days after the employee reaches maximum medical improvement, whichever is later.  The effect of this change will be to allow greater opportunity for employees with smaller impairment ratings to seek additional PPD if they do not return to work within 180 days of reaching maximum medical improvement.

Likewise, under prior law, the employee had one (1) year after the period of compensation expired to file a Petition for Benefit for Determination seeking additional PPD benefits.  That time period has also been modified to allow the filing within one (1) year after the period of compensation expires,or within one (1) year after the 180 day period after the employee reaches maximum medical improvement, whichever is later.

B.    Uninsured Employers Fund

The Uninsured Employers Fund (UEF) was created to help provide some compensation benefits to employees who suffered work injuries while working for employers who did not have workers’ compensation insurance.  To be eligible to receive compensation from the UEF under the statute and prior law, an employee had to satisfy five criteria.  First, the employee had to be employed by an employer who failed to properly secure workers’ compensation insurance coverage.  Second, the employee suffered an injury that would be considered compensable under the workers’ compensation law, at the time the employer had no worker’s compensation insurance coverage.  Third, the employee was a Tennessee resident on the date of injury. Fourth, the employee provided notice within sixty (60) days after the date of injury to the Tennessee Bureau of Workers’ Compensation of the injury and of the employer’s failure to secure insurance coverage.  Finally, the employee must have secured a judgment for workers’ compensation benefits against the employer for the injury.
 
Senate Bill 2190 left this system mostly intact, but slightly modified the fourth element of employee eligibility to make it easier for an employee to seek benefits from the UEF.  Specifically, the sixty (60) day notice requirement was extended to 180 days.
Senate Bill 2190 also removed a statutory requirement that the Court of Workers’ Compensation Claims must convene a full and final hearing no more than sixty (60) days after the notice of hearing has been filed.  This requirement was deemed to be unrealistic, and it was therefore deleted from the statute.

C.    Effective Date

The statutory changes discussed above under Senate Bill 2190 are effective for injuries on or after June 22, 2020.

II.    Tennessee Public Chapter 682 (Senate Bill 2189)

Senate Bill 2189 is a relatively narrow bill targeted at a very specific issue: jurisdiction and enforcement over out-of-state construction companies.

Under prior law, extra-territorial jurisdiction over out-of-state construction services providers was analyzed using the same statutory standard that would apply to any other employer.  However, under Senate Bill 2189, a new scheme now applies for out-of-state construction companies.

Under the new law, any construction services provider performing work in the state of Tennessee must maintain workers’ compensation insurance coverage throughout the duration of that work and must designate “Tennessee” in section 3A of the construction services provider’s workers’ compensation insurance policy or endorsement.

To help enforce this requirement, Senate Bill 2189 also added a new statutory mechanism to collect penalties issued against violators of the workers’ compensation insurance coverage requirements, who try to avoid the penalties by closing the business down and opening a similar business under a new name. That will no longer work, because the Bureau can now seek to enforce penalties against a successor in interest. 

Senate Bill 2189 was signed by Governor Lee on June 15, 2020, and it is effective as to penalties assessed on or after that date.

Fredrick R. Baker, Member
Wimberly Lawson Wright Daves & Jones, PLLC
1420 Neal Street, Suite 201
P.O. Box 655
Cookeville, TN 38503-0655
Phone: 931-372-9123
Fax:  931-372-9181
fbaker@wimberlylawson.com
www.wimberlylawson.com

JUNE 2020

COVID-19 CLEARS THE WAY FOR TELEHEALTH TO TREAT TENNESSEE WORKPLACE INJURIES

One of the most fundamental rights of an injured worker under the Tennessee Workers’ Compensation Law is the right to medical treatment for the work-related injury or illness. Typically, this medical treatment is provided by a medical provider chosen by the injured worker from a list of doctors – i.e. the medical panel.  The statute requires that the medical panel consist of providers who are located in the employee’s community, with the clear intent being that the medical provider needs to be located near enough to where the injured worker lives so that the injured worker can be treated by the medical provider without any undue burden or expense of excessive travel. This entire framework assumes that the injured worker will receive treatment by physically going to the doctor’s office and by undertaking an in-person medical visit with the provider. Indeed, that is exactly what was required under the Tennessee Workers’ Compensation law – that is, until the COVID-19 pandemic.

Before COVID-19, the Tennessee Workers’ Compensation Law did not provide for nor did it allow an injured worker to receive treatment for his or her injury via a telehealth visit.  However, that has now changed.

The first step occurred on March 17, 2020, when the Trump Administration announced expanded Medicare telehealth coverage to enable beneficiaries to receive a wider range of healthcare services from their doctors without having to travel to a healthcare facility. Prior to this announcement, Medicare was only allowed to pay clinicians for telehealth services such as routine visits in certain circumstances. For example, the beneficiary receiving the services must live in a rural area and travel to a local medical facility to get telehealth services from a doctor in a remote location. In addition, the beneficiary would generally not be allowed to receive telehealth services in their home. President Trump’s announcement came at a critical time as these new flexibilities would help healthcare institutions across the nation to offer some medical services to patients remotely, so that healthcare facilities like emergency departments and doctor’s offices remain available to deal with the most urgent cases and to reduce the risk of additional infections.

On March 25, 2019, the Tennessee Bureau of Workers’ Compensation issued a notice stating, for the first time, that a panel-chosen physician may utilize telehealth in the treatment of an injured worker. The notice clarified that there is no specific provision in the law that addresses the subject of a telehealth provider to be listed on the medical panel.  Payment was directed to be made in accordance with all guidelines from the U.S. Centers for Medicare & Medicaid Services (CMS), including those announced on March 17, 2020. 

The Tennessee Bureau of Workers’ Compensation provided even further guidance on April 1, 2020, by issuing its Temporary Guidance on Telehealth for Workers’ Compensation.  This guidance specifically allows for telehealth in the context of workers’ compensation during the COVID-19 national emergency, to provide appropriate care continuation and to improve functional considerations for both new and established patients. The Bureau required that telehealth visits be conducted by telephone only or by video/audio links with the express agreement by both patient and provider. Although recommended to have the appropriate Tennessee licenses, certain requirements were waived for specific qualified providers. Moreover, certain telecommunications applications not previously allowed are now permitted for use during this period, including Skype and Facetime. It is anticipated that the provider will still make a good faith effort to protect patient privacy, and records should be kept as if the visit were in-person. Medical providers may bill for the visits using standard billing forms, and the bill should be paid pursuant to the applicable Medical Fee Schedule. 

On April 30, 2020, CMS announced that it was waiving certain requirements of federal law which specify the types of practitioners that may bill for the services when furnished as telehealth services. The waiver of these requirements expands the types of health care professionals who can provide telehealth services. As a result, physical therapists, occupational therapists, and speech language pathologists were permitted to use telehealth to provide many Medicare services.

On May 1, 2020, this issue was also addressed by Governor Bill Lee in Executive Order No. 32. That Executive Order addressed physical, occupational, and speech therapy via telemedicine for workers’ compensation claimants, and it temporarily suspended certain existing workers’ compensation regulations to specifically allow those types of services to be delivered via telemedicine. The Order also specified that the billing for such services should be reimbursed as if the services were delivered in-person. 

As you can see from the above, in only about a month and half, we have gone from not being able to use telehealth at all in the context of workers’ compensation, to being able to use it routinely as a vital component of providing uninterrupted medical care for injured workers.  Not only does this help the injured worker by providing continued care, it also helps employers and their workers’ compensation carriers by helping to ensure that workers’ compensation claims will continue to move toward resolution in an orderly fashion. After all, a claim cannot typically be resolved until the employee has completed his or her medical treatment with the authorized treating physician and placed at maximum medical improvement. Before the introduction of telehealth, COVID-19 presented quite an obstacle in this regard since most non-emergency medical care was placed on hold, including the necessary follow-up care for work injuries. However, the new availability of telehealth should benefit both injured workers and their employers by allowing that medical treatment to get back on track – at least to some extent. 

Obviously, telehealth is not the right solution for every situation. There will always be a need for in-person medical treatment, particularly at the beginning and end of treatment, and for direct procedures. However, for routine follow up care and therapy, telehealth will sometimes be the best solution to keep the claim moving forward in a timely fashion. While the above-described measures by the Tennessee Bureau of Workers’ Compensation are temporary and apply only during the COVID-19 pandemic, be on the lookout for more permanent measures. The benefits of telehealth under the right circumstances cannot be questioned, and it seems very likely that telehealth in some form is here to stay. 

Fredrick R. Baker, Member
Wimberly Lawson Wright Daves & Jones, PLLC
1420 Neal Street, Suite 201
P.O. Box 655
Cookeville, TN 38503-0655
Phone: 931-372-9123
Fax:  931-372-9181
fbaker@wimberlylawson.com
www.wimberlylawson.com

February 2020

Tennessee Appeals Board Finds “Could Be” Medical Testimony Insufficient to Establish Causation

Prior to 2014, the compensability of Tennessee workers’ compensation injuries was frequently established by medical testimony that the injury “could be” or “might be” work related. That ended in 2014 with the Tennessee Workers’ Compensation Reform Law. One of the many changes brought about under the Reform was the statutory requirement that an injury was not compensable unless it aroseprimarily out of and in the course and scope of employment. Moreover, causation had to be established to a reasonable degree of medical certainty, meaning more likely than not, “as opposed to speculation or possibility.” Presumably, this now means that “could be” or “might be” medical testimony is generally not enough to support a finding of compensability. 

The Tennessee Workers’ Compensation Appeals Board put that proposition to the test on January 21, 2020, in the case ofArmstrong v. Chattanooga Billiard Club.  In that case, the employee alleged injuries to her mouth, face, and right arm as a result of receiving an electrical shock in the course of her employment. The employer denied causation of the alleged dental injuries, relying on the opinion of Dr. Richard Johnson that the dental injuries were not work related. However, the employee responded by submitting the medical opinion of Dr. Drew Shabo that the dental work needed to save the employee’s teeth “could very well be needed due to the electrical shock.”

The Appeals Board reviewed this case on a motion for summary judgment from the employer.  Finding that Dr. Johnson’s opinion was sufficient to negate an essential element of the employee’s claim, the burden shifted back to the employee to demonstrate the existence of specific facts in the record that could convince the court to resolve the causation issue in her favor. The Appeals Board found Dr. Shabo’s “could be” opinion insufficient to satisfy the statutory causation standard. Therefore, the employer was entitled to summary judgment with regard to the alleged dental injuries.

For more information, please contact:

Fredrick R. Baker, Member

1420 Neal Street, Suite 201
P.O. Box 655
Cookeville, TN 38503-0655
Phone: 931-372-9123
Fax:  931-372-9181
fbaker@wimberlylawson.com
www.wimberlylawson.com