State News : Tennessee

NWCDN is a network of law firms dedicated to protecting employers in workers’ compensation claims.


NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.  


Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.


Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.


Tennessee

WIMBERLY LAWSON WRIGHT DAVES & JONES, PLLC

  931-372-9181

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.


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



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 

 

October 2018

Tennessee Workers’ Compensation Update


I.         A Busy Year for Workers’ Compensation in Tennessee

So far, the year 2018 has seen the Bureau of Workers’ Compensation (BWC) introduce the most expansive revisions to the Tennessee Workers’ Compensation Rules since the reform act went into effect in 2013.  Employers and insurance carriers now bear new legal burdens brought about by several brand-new pieces of legislation, amendments to the Bureau of Workers’ Compensation’s Rules and Regulations, and additional form requirements.  The purpose of this article is to serve as a general guide to the most relevant new provisions passed in 2018. 

II.        New Claims Handling Standards

The Tennessee Bureau of Workers’ Compensation (BCW, or “the Bureau”) has adopted a new set of regulations codified at 0800-02-14 et seq. This is the first revision to the Tennessee Claims Handling Standards in decades.  These new provisions, which went into effect on August 2, 2018, have a startling impact on the responsibilities of employers and insurance carriers in handling and maintaining workers’ compensation claims.  They create a more form-intensive environment.  The Bureau of Workers’ Compensation is also philosophically placing a new burden on the employer and insurance carrier to educate employees on the workers’ compensation processes, along with their rights and responsibilities under the workers’ compensation laws. 

Given the scope of this article being utilized in the context of a Labor and Employment Law Conference, I will first address the claims handling standards that directly impact an employer.  A new provision has been enacted stating that employer shall provide the BWC all information and documentation that is requested for the purpose of monitoring, examining or investigating the entity’s operations and processes.  Employers are required within ten (10) calendar days of request to provide any information requested by the Bureau of Workers’ Compensation unless the BWC allows an extension of time.  The purpose of this new regulation is for the BWC to be empowered during the course of a workers’ compensation case to obtain whatever information is required from the employer. 

Employers should be mindful that when they do receive requests from the Bureau of Workers’ Compensation, that they are under a separate duty from their adjusting entity or insurance carrier to provide this information.  Oftentimes the insurance carrier will take the burden from the employer for providing this information.  However, this does not change the fact this regulation does make it the employer’s responsibility under a potential $50.00 to $5,000.00 penalty if the employer does not comply and the insurance company fails to meet any of its duties to provide information timely. 

Generally speaking, a penalty program has been in effect at the Bureau for many years.  However, it is anticipated that regulations such as this type are being adopted for the purpose of the Bureau of Workers’ Compensation ramping up the enforcement of its penalty program which includes monitoring and disciplining employers for failure to comply with the Workers’ Compensation Rules and Regulations.

The remaining claims standards impact the duties of third party administrators and insurance adjusters.  These responsibilities and deadlines are listed in their entirety on the following chart:

Regulation              Responsible Party                   Brief Summary                                  Time Limit

Designated Liaison
0800-02-14-.03(2)

Adjusting Entity

Shall designate at least one contact person to serve as a liaison between the entity and the BWC. Designee’s name shall be provided to the BWC.

In January of each year/within 15 calendar days of any change regarding designee

Designated Liaison
0800-02-14-.03(2)

Adjusting Entity

Designee shall provide the BWC on a form[1] contact information for each individual adjuster performing duties covered by these Rules

Every January and July

Claims Reporting Requirements
0800-02-14-.04(4)

Adjusting Entity

Shall submit First Report of Work Injury (C20) form to the BWC (unless a “minor injury” as defined by Regulation). Injuries causing 7 calendar days of disability or fewer*

As soon as possible but no later than on or before the 15th day of the month following the month in which the injury occurred

Claims Reporting Requirements
0800-02-14-.04(4)

Adjusting Entity

Shall submit First Report of Work Injury (C20) form to the BWC (unless a “minor injury” as defined by Regulation). Injuries in which EE does not return within 7 calendar days after the occurrence of the injury must be reported*

As soon as possible but no later than 14 calendar days after the report by the ER of the occurrence of injury

Claims Reporting Requirements
0800-02-14-.04(5)

Adjusting Entity

Shall send a Notice of a Reported Injury[2] on a form to each claimant’s last known address and provide the EE with a copy of the Beginner’s Guide to Tenn. Workers’ Compensation[3]

Within 2 business days of receiving a verbal or written notice of injury

Claims Reporting Requirements
0800-02-14-.04(6)

Adjusting Entity

Decisions on compensability shall be made

Within 15 calendar days of the verbal or written notice of injury

Claims Reporting Requirements
0800-02-14-.04(6)

Adjusting Entity

Must notify the BWC of reaching a decision to deny a claim by filing a Notice of Denial of Claim for Compensation (C23) and must provide the claimant or their representative, the treating physician and insured a non-EDI version of the Notice of Denial*

Within 5 business days of reaching decision to deny

Claims Reporting Requirements
0800-02-14-.04(7)

Adjusting Entity

Must file the First Report of Payment of Compensation (C22)*

Within 5 business days of the initial payment of benefits

Claims Reporting Requirements
0800-02-14-.04(7)

Adjusting Entity

Must file the Notice of Change or Termination of Compensation Benefits (C26) and must provide the claimant or their representative, the treating physician and insured a non-EDI version of the Notice of Denial*

Within 5 business days of a change or termination of the payment of compensation benefits

Claims Reporting Requirements
0800-02-14-.04(8)

Adjusting Entity

If electing to controvert its liability and terminate the payment of compensation benefits after TTD and/or medical benefits have been paid, shall submit a Notice of Controversy (C27)*

Within 15 calendar days of the due date of the first omitted payment

Claims Handling and Investigation
0800-02-14-.05(1)

Adjuster

Shall make verbal or written contact with the claimant on all claims. For med only claims, contact is satisfied by the mailing of Notice of Reported Injury (See Footnote 3). Notice of Reported Injury is not sufficient in lost time claims

Within 2 business days of receiving a verbal or written notice of any injury

Claims Handling and Investigation
0800-02-14-.05(2)

Adjuster

Adjuster shall make personal, written or telephonic contact with the ER to verify details regarding the claim

Within 2 business days of the notice of the injury

Claims Handling and Investigation
0800-02-14-.05(3)

Adjuster

If there is a switch in adjusters, new adjuster shall make verbal or written contact with the claimant and shall provide claimant with the newly assigned adjuster’s name and contact information

Within 2 business days of the assignment

Claims Handling and Investigation
0800-02-14-.05(3)

Adjuster

In a mass transfer of files to new adjuster, the new adjuster shall make verbal or written contact with the claimant

Within 7 business days of the assignment

Claims Handling and Investigation
0800-02-14-.05(4)

Adjuster

If compensability is questioned, shall contact all authorized medical providers or their staff members who have rendered medical services to the claimant to investigate details concerning the injury and treatment and make a preliminary compensability determination

Within 3 business days of the initial office visit

Claims Handling and Investigation
0800-02-14-.05(5)

Employer / Adjusting Entity/Providers of Services Related to WC Claims in Tennessee

Shall provide the BWC all information and documentation that is requested for purposes of monitoring, examining or investigating the entity’s operations and processes

Within 10 calendar days of request unless BWC allows an extension of time

Payment of Benefits
0800-02-14-.06(2)(a) and (3)

Adjuster

Initial and subsequent payment of TTD

Initial TTD payments no later than 15 calendar days after the date the disability begins. Subsequent payments within consecutive 15 calendar day increments

Payment of Benefits
0800-02-14-.06(4)

Adjuster

Funeral expenses must be paid

Within a reasonable period of time, not to exceed 30 days after submission of invoice

Resolution Process
0800-02-14-.08(1)

Adjuster

When PPI and MMI determined by ATP, that information and other information needed to settle a claim shall be documented in writing on a form prescribed by the administrator and provided at no cost to the claimant

Within 30 calendar days of receipt of PPI and MMI information by the adjuster

Resolution Process
0800-02-14-.08(2)

Adjuster

Shall make an offer of settlement in writing within 30 calendar days of receipt of PPI and MMI information

Within 30 calendar days of receipt of MMI and PPI information

Claims Resolution Filing Requirements
0800-02-14-.09(1)(a)

Employer or Employer’s Agent

Shall file a fully completed SD form in matters concluded by settlement or resolved by trial, including settlements that only close future medical treatment *

Contemporaneous with filing of the Final Order or settlement

Claims Resolution Filing Requirements
0800-02-14-.09(1)(b)

Adjusting Entity

Must submit a fully completed Final Report of Payment and Receipt of Compensation (C29) via EDI in matters not concluded by settlement or resolved by trial *

Within 30 days following the final payment of compensation


III.      The Bureau of Workers’ Compensation Has Enacted New “General Rules” of the Workers’ Compensation Program

Several of these provisions, which went into effect May 31, 2018, directly impact employers.  For example, employers are required within one business day of the knowledge of an injury to report all known and reported accidents or injuries to their adjusting entity.  The employer shall provide the employee a panel (C-42) of physicians with medical providers that are qualified, willing and able to treat in a timely manner.  The new regulation requires a medical panel to be provided by the employer “as soon as practicable.”  However, the regulation goes on to state that if the employer does not provide a panel within three (3) business days, it will be subject to a penalty.

Penalties can also occur if the panel is not provided on the proper form or does not contain doctors that are “qualified, willing and able to treat in a timely manner.”  As such, if a panel is provided with a doctor who, for example, has decided not to take workers’ compensation patients, that is considered a failure on the part of the employer and the employer can be subject to a penalty.  If the doctor is not properly qualified, the employer can be subject to a penalty.  If the doctor cannot treat in a timely manner and states he will need a number of months to schedule an appointment, the employer can be penalized.  As such, it is critical for the employer to maintain current panels.  It would not be an unreasonable practice for an employer to contact all medical providers on the panel each time a panel is provided to ensure that the doctors being provide are qualified, willing and currently able to treat in a timely manner.  Also, please note that some employers do delegate the responsibility of provision of medical panels to their insurance carrier.  However, it is to be noted that this legal duty to provide a panel is assigned to employers and that the penalty could adhere to the employer, even if an insurance carrier fails to meet its obligations.

Sometimes penalties are unavoidable.  There is a new provision under the regulations that state that an employer or adjusting entity must pay uncontested penalties within twenty (20) days of receiving a notice from the Bureau of Workers’ Compensation.  There is an appeals process which, of course, defers the requirement to provide payment.

The Bureau of Workers’ Compensation went into great detail with some additional requirements for proper drafting and handling of medical panels.  The regulations state that an employer shall “immediately” provide proper emergency assistance.  Therefore, if an employee requests emergency assistance, treatment should be provided right away.  However, this does not remove the employer’s obligation to provide a panel of physicians within three (3) days.

For years, employer have utilized on-site, in-house or other employer-sponsored medical providers.  There has always been a question as to whether or not this was a  prima facie violation of an employer of the requirement to provide a panel.  Employees and their attorneys would argue that the employer sending the claimant unilaterally to one of these on-site sponsored medical facilities or nurses was a violation of the law.  However, the new regulations clarify that on-site, in-house or other employer-sponsored medical providers are appropriate.  An employer is allowed to direct a claimant to them prior to providing the initial panel.  Critically, this does not alleviate the requirement that the employer must provide an appropriate panel of physicians within three (3) business days.

The regulations also state that walk-in clinics and urgent care facilities can be included in the panel.  However, the actual name of the staff physician or medical director from that walk-in clinic or urgent care facility must be included on the panel.  This is an exception to the general rule that employers are allowed to put the general practice name instead of a physician’s name on the panel.  Employers should be mindful that if they do utilize walk-in clinics or urgent care facilities, that the doctor’s name must be included.

For all other facilities besides walk-in clinics and urgent care facilities, employers are still able to include the name of the specialty practice group without naming a specific doctor.  However, the regulations make clear that in these circumstances the employee will have the ultimate choice as to which doctor at that facility they want.  As such, it is recommended that employers, whenever possible, utilize the name of the doctor and do not give up control over being able to direct medical treatment to the physician of their choice.  Oftentimes there are far less conservative physicians within a practice group that the employer may not want to provide to an employee.

The regulations also address the modern reality that many medical providers are utilizing nurse practitioners on an increasing basis.  Oftentimes, employees or their attorneys have made the argument that they are not receiving medical treatment under the statute because they are not seeing an actual doctor.  The regulations clarify that the employer may provide medical treatment ordered by an attending nurse practitioner.  However, only the supervising physician may actually be listed on the panel, not the name of the nurse practitioner.  The regulations also clarify that only the supervising physician may determine medical causation, impairment rating and the MMI date.  Those issues are off limits to a nurse practitioner and will be disregarded by the court.

The remaining amendments to the General Rules primarily impact adjusters and insurance carriers.  However, they are provided here in summary form in the following chart:

TN Regulations    Responsible Party                    Brief Summary                                        Time Limit

Required Proof of Coverage Filings
0800-02-01-.04(4), .12(1)

Adjusting Entity

Required to mail a copy of the Notice of Employer Rights and Responsibilities in Workers’ Compensation Claim and Tenn. Workers’ Compensation Posting Notice to ER[4]

Within 5 business days of the date of procurement and subsequent renewal of a policy

ER Claims Reporting Requirements
0800-02-01-.05(2)

Employer

Shall report all known or reported accidents or injuries to their adjusting entity

Within 1 business day of knowledge of injury

Medical Panels
0800-02-01-.06(1)

Employer

Shall provide EE a panel (C42) of physicians with medical providers qualified, willing and able to treat in a timely manner*

As soon as practicable, but no later than 3 business days after receipt of notice of workplace injury and an EE expressing a need for medical care

Medical Panels
0800-02-01-.06(3)

Employer

Shall provide proper emergency assistance.  After EE’s medical condition stabilizes, shall follow requirements to provide a panel

Emergency assistance immediately.  3 business days after receipt of Notice of Workplace Injury

Medical Panels
0800-02-01-.06(8)

Employer or Adjusting Entity

When an ATP refers the EE for specialized care, the ER shall be deemed to have accepted the referral, unless ER provides a panel of 3 or more physicians

Within 3 business days of receipt of the referral

Civil Penalties
0800-02-01-.10(4)

Employer or Adjusting Entity

Uncontested penalties shall be paid

Within 20 days of the date of the Bureau’s Notice of Assessment of Penalty

Utilization Review
0800-02-06-.06(1)

Employer

Shall submit the case to its  Utilization Review organization

Within 3 business days of the authorized treating physician’s notification of the recommended treatment


IV.       2018 Legislative Changes

Typically, the most sweeping changes in Tennessee Workers’ Compensation Law come by way of reformation of the existing Tennessee Code Annotated provisions of the Workers’ Compensation Law.  However, this year such changes were relatively minimal.

Perhaps the most relevant legislative change addresses the issue of awarding attorney’s fees to employees who are successful in challenging workers’ compensation denials. This new legislation, effective April 18, 2018, seeks to clarify a previous rule that states that an employee can obtain attorney’s fees from employers and insurance carriers who “wrongfully” deny a claim.  Previously, the Tennessee Legislature had failed to define what constitutes a “wrongful” denial.  For a wrongful denial to be assessed, a workers’ compensation judge must subsequently make a finding that workers’ compensation benefits were owed but wrongfully withheld from an employee.  This process occurs either in the context of the BWC’s expedited hearing or a compensation hearing.

This new legislation defines the term “wrongfully” as erroneous, incorrect, or otherwise inconsistent with the laws or facts.  It also extends the “sunset date” for this law to persist at least through June 30, 2020 before it must be re-examined and possibly extended by the Tennessee Legislature.

Concurrent with the enactment of this new legislation was a Workers’ Comp Appellate Court decision in the matter of  Tori Andrews v. Yates Services, LLC.  This case, decided on May 8, 2018, dealt with the issue of whether or not an employer’s denial of benefits was in fact “wrongful.”  In  Andrews the claimant injured his lower back.  The employer initially accepted the claim as compensable and provided a panel of physicians.  Thereafter, the employer denied additional benefits after receiving a medical opinion from the authorized treating physician, indicating that the employee’s condition did not arise primarily out of and in the course of employment.  The employee thereafter sought treatment on his own and obtained an unauthorized medical opinion that the injury did arise primarily out of his employment.

The Trial Court accepted the opinion of the employee’s physician, finding that the employee was likely to prevail at a compensation hearing and ordered temporary total disability and medical benefits.  The issue was whether or not the employee was also entitled to attorney’s fees and expenses for a “wrongful” denial of benefits.  The Trial Court denied a motion for attorney’s fees by the employee, stating that a wrongful denial requires that minimum of finding that the employer’s denial lacks good cause.

The Appellate Court reviewed the new proposed statutory language.  It stated that applying this new definition of “wrongfully” meant that it had to disagree with the Trial Court that there needs to be some sort of finding that the employer’s denial lacked good cause.

The Appellate Court’s most important finding was to determine that the reasonableness of an employer’s denial is to be determined at the time the denial was made.  As such, in the facts of the  Andrewscase, the denial was made when the authorized treating physician was the only medical opinion available.  The Appellate Court stated that the employer should not be held accountable for a “wrongful” denial because the unauthorized doctor later was found to rebut that presumption.  In other words, the employer could not have known that in the future a medical opinion that did not exist would come into existence and prevail over the opinion of the presumed correct authorized treating doctor. 

As such, the holding in the  Andrews case is a win for employers.  However, one unanswered question would be whether or not the court would have found the denial “wrongful” had the employer and insurance carrier had the benefit of the unauthorized doctor’s opinion and then denied: would the court have determined that was erroneous, incorrect or otherwise inconsistent with the law or facts?  Future case law will likely further interpret this provision.

Another new piece of legislation establishes that insurance carriers are no longer required to maintain a physical claims office within the state of Tennessee.  This was effective April 12, 2018 and deletes a law that has been on the books for many years but has never been enforced by the Bureau of Workers’ Compensation. Because it has lacked enforcement, many out of state insurance companies do not have a local Tennessee office.

Yet another new legislative provision impacts employers that are considered to be “farm and agricultural employers.”  These types of employers can accept workers’ compensation coverage simply by purchasing a workers’ comp insurance policy.  They are also enabled to cancel workers’ comp insurance by simply not renewing their policy.  This was put into effect to eliminate any requirement for a farm or agricultural employer to register with the state or maintain paperwork in a formal capacity with the State of Tennessee in order to elect coverage under the Tennessee Workers’ Compensation Laws.

An additional provision deals with what the law refers to as “marketplace platforms.”  This provision provides that a marketplace contractor is an independent contractor and not an employee of the marketplace platform for all purposes under state and local laws, rules, ordinances and resolutions of certain additions are set forth in a written agreement between the marketplace platform and the marketplace contractor.  This provision went into effect July 1, 2018.


An interesting new law has been put into effect for what is referred to as “workplace learning.”  This is a situation in which an employer will act as a host for a student intern.  Basically, a work-based student learning grant program will, through an educational institution, coordinate for an employer to allow a student to act as an intern (paid or otherwise).  The employer has the option to opt into workers’ compensation insurance coverage for the participating students.  In the event that the employer does make that election to provide workers’ comp coverage for the student, the educational institution is required to maintain liability insurance coverage to compensate the student for any injury that would not be covered under the workers’ compensation law. 

This would conceivably include situations where an intentional tort was perpetrated by the employer on the student.  Nevertheless, the overall purpose of this is to assist an already existing student intern program by attempting to encourage employers to engage in the process.  They will have additional protections by being able to avail themselves of their own personal workers’ compensation coverage for these students, but also for additional tort liability coverage provided by the referring educational institution.  Nevertheless, it is important for employers who engage in this program to be mindful of this new legislation and protections if they wish to engage in such internship programs.

Lastly, some sunset provisions extend the life of the Bureau of Workers’ Compensation, Medical Advisory Committee, and Medical Payment Committee for six years through June 20, 2024. 

V.        Significant Revisions to the Tennessee Fee Schedule

The Tennessee Fee Schedule is a provision of the Bureau of Workers’ Compensation’s regulations that provide caps and limitations on certain types of medical treatment and medical costs.  The primary purpose of this section of the statute is for cost containment.  These new revisions are effective for services rendered on or after February 25, 2018, irrespective of the claimant’s injury date.  As such, these will grandfather in prior cases.  These new provisions are codified at 0800-02-25-.01 et seq. 

These set the ground rules that insurance carriers use for reimbursing medical providers.  Notice of an alleged violation of the Fee Schedule allows any party to contest at a case hearing before the Administrator under the Uniformed Administrative Procedures Act.  Specific guideline limits will not be detailed here as they are outside of the scope of this article.  However, please be mindful that there are limitations on costs and number of services associated with surgery, anesthesia, injections, ambulatory surgical centers, chiropractic services, outpatient physical and occupational therapy, medical equipment, orthotics and prosthetics, pharmaceuticals, ambulance services and clinical psychological services.

With regard to some of the new provisions under the Tennessee Fee Schedule, these provisions do the following:
·               Change the timeframes for holding, notification and payments;
·       Change some current definitions to line up with those under the Medicare program;
·       Require the authorized treating physician to see an injured worker at least every sixty (60) days if an injured worker is receiving temporary disability payments, to assess progress regarding return to work;
·       Provides rules for additional payments to physicians for certain additional causation opinions and drug/alcohol evaluation and counseling;
·       Allow payment for chiropractors for an additional evaluation;
·       Clarify rules about compounding, benchmarking and parity for all drug dispensers;
·       Clarify rules about laboratory charges, pay for CRNA’s, PA’s and NP’s;
·       Establish payment for work hardening programs and functional capacity evaluations;
·       Make discretionary the Utilization Review program for physical, occupational and psychotherapy;
·       Limit payments for invoiced items to a facility;
·       Prohibit providers for charging for negative records searches;
·       Provide additional payment to trauma hospitals for certain services;
·       Simplify hospital billing determinations by changing the inclusion under the stop loss calculations; and
·       Establish that a new Fee Schedule Handbook will be published in the near future.  This has not been published at the time of the drafting of this article.

Most relevant to an employer are the provisions of the Fee Schedule that deal with the timing of medical payments.  Oftentimes this is something that will be dealt with by the insurance carrier or TPA who is assigned to this task.  Nevertheless, the regulations themselves state that employer is required to pay any undisputed portion of a bill within thirty (30) calendar days of receipt of a properly submitted medical bill.  The employer has fifteen (15) days to resubmit the bill to the provider if it is not a proper form or does not comply with the Tennessee Fee Schedule.  If resubmitted to the provider, the timing shall not apply towards the thirty (30) days that the employer has to pay the bill.  Along with resubmission of the bill, an employer shall notify the provider that the bill was not properly submitted and specify the reason.  Thereafter, the employer shall date stamp medical bills and reports not submitted electronically on receipt.

Independent Medical Examinations are not to exceed $500.00 per hour.  A physician who performs an independent medical examination may only require prepayment of $500.00, no more.  Additional billings that come after that must occur after the examination and production of a report by the IME physician. 

Now deadlines for payment of medical bills have also been established, and are summarized in the chart below:

 TN Regulations    Responsible Party                    Brief Summary                                     Time Limit

Medical Payments
0800-02-17-.10(7)

Employer

Shall pay for all properly submitted and complete bills not disputed within 15 business days (or uncontested portions of a bill)

Within 30 calendar days

Medical Payments
0800-02-17-.10(8)

Employer

Shall notify the provider of receipt of the bill if it was not properly submitted and specify the reasons

Within 15 business days

Medical Payments
0800-02-17-.10(9)
0800-02-26-.06(8)

Employer

When disputing a bill or portion of a bill, shall pay the undisputed portion of the bill

Within 30 calendar days of receipt, 15 calendar days for E-billing

Wage Statement
0800-02-21-.10(3)

Employer

Shall provide a Wage Statement (C41) detailing the EE’s wages over the 52 week period preceding the injury

Within 7 business days after the request of the mediating specialist or within 15 business days after a Dispute Certification Notice is filed with the Clerk, whichever is sooner

Medical Payments/

E-Billing
0800-02-26-.05(4)(d)

Payer

Shall acknowledge receipt of an electronic medical bill by returning an Implementation Acknowledgement (ASC X12 999)

Within 1 business day of receipt of the electronic submission


VI.       Drug-Free Workplace Program Rules

These new amendments became effective May 6, 2018.  An extensive overview of the new Tennessee Drug-Free Workplace regulations is beyond the scope of this article.  Nevertheless, portions of this program do impact a workers’ compensation case.  These new regulations clarify the rule requiring that an employer must be a certified member of the Drug-Free Workplace Program.  One of the common problems with utilizing the Drug-Free Workplace Program is that employers will often forget to renew the program and, therefore, not avail themselves of the benefits in a workers’ compensation case when an employee tests positive for drugs or alcohol. 

Traditionally speaking, an employer who wants to assert the defense of willful intoxication will be required to meet its own burden of proof to show that the drugs or alcohol were the proximate cause of the injury.  The primary benefit of the Drug-Free Workplace Program is that burden is instead shifted to the employee to show that the intoxication was not the proximate cause of the injury.  Furthermore, the defense of willful intoxication can be applied in situations where an employee refuses to take a drug test.  However, that defense to a workers’ compensation claim is only available under the circumstances where the employer is a certified Drug-Free Workplace Program participant.

VII.     Adjuster and Adjusting Entity Certification Program

This voluntary program became effective May 31, 2018.  Lengthy regulations have been established to set up a voluntary system for adjusters to become trained and, therefore, “certified” as Tennessee adjusters.  A good portion of these regulations contain the contents of that training.  Training programs have already started taking place in Tennessee.

Presently, this certification program is voluntary.  However, it is clear that the Bureau of Workers’ Compensation’s intent is to eventually make adjuster training mandatory in Tennessee.  In the next few years we anticipate that this voluntary program will be made mandatory for adjusters in the state.  It remains to be seen if adjusters will be able to obtain their education remotely or will have to travel to the state of Tennessee to obtain this annual certification.

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


T. Joseph Lynch III, Member
Wimberly Lawson Wright Daves & Jones, PLLC
550 Main Avenue, Suite 900
P.O. Box 2231
Knoxville, TN 37901-2231
(865) 546-1000
jlynch@wimberlylawson.com