State News : Tennessee

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

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

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

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

December 2017

Tennessee Workers’ Compensation Update

The Tennessee Workers’ Compensation Law underwent sweeping changes in 2014, including a new formula for permanent disability, a new administrative court system, and a new causation standard. Since then, the Tennessee legislature, the Tennessee Bureau of Workers’ Compensation, and the new administrative court system have been busy fleshing out the new system. Indeed, 2017 brought several critical changes to the Tennessee Workers’ Compensation Law.

I.                 2017 Legislative Changes by Tennessee General Assembly

We will begin our review of the 2017 revisions by focusing on the actions of the Tennessee General Assembly.

With regard to medical panels, the basic rule is that employers must provide to the injured worker a panel of three or more independent physicians, surgeons, chiropractors, or specialty practice groups, if available in the employee’s community, from which the employee may choose the authorized treating physician. The 2017 changes impact situations in which there are not three or more independent physicians, surgeons, chiropractors or specialty practice groups available in the employee’s community.  In such circumstances, medical panels must now contain three or more independent providers or specialty practice groups not associated in practice together within a 125 mile radius of the employee’s community. In this context, the phrase “not associated in practice together” means that at least one provider or specialty practice group is not associated in practice with another provider or specialty practice that is on the panel. Essentially, where there are not three or more options in the local community, and an employer is expanding beyond the usual range of the community, only two of the providers can be associated in practice.  At least one of the options on the panel must be independent of the other two. This will be particularly important for employers located in rural areas where the choices for medical providers is limited. This change was effective May 18, 2017.

Another important legislative change is the creation of a vocational rehabilitation program within the Tennessee Bureau of Workers’ Compensation. Specifically, the “Second Injury Fund” has been renamed the “Subsequent Injury and Vocational Recovery Fund.”  The Fund now has a new responsibility to determine the appropriateness of applications for vocational recovery assistance and to pay out such benefits.  Vocational recovery assistance may include vocational assessments, employment training, job analysis, vocational testing, GED classes and testing, and education through a public Tennessee community college, university, or college of applied technology, including books and materials. Assistance is capped at $5,000.00 per employee per fiscal year and must not exceed the total sum of $20,000.00 per employee who participates in this program for all years.  The total aggregate amount to be paid from the Subsequent Injury and Vocational Recovery Fund is limited to a total of $500,000.00 in any calendar year. This new vocational recovery assistance is applicable only to injuries occurring on or after July 1, 2018, and a sunset provision prohibits it from applying to injuries on or after June 30, 2021.  

The Tennessee legislature also made a small but important change for death benefits. Under prior law, recoverable burial expenses were capped at $7,500.00. Under the new law, the cap has now been increased to $10,000.00 – an adjustment to reflect the ever-increasing costs for funerals. This change was effective May 18, 2017.

The recent legislative changes further alter the utilization review system.  Employers are now restricted from sending certain medical recommendations to utilization review in the early days of a workers’ compensation claim. For instance, utilization review may not be used for diagnostic procedures ordered in accordance with the Medical Treatment Guidelines by the authorized treating physician within the first 30 days after the date of injury. Likewise, utilization review may not be used for diagnostic studies recommended by the treating physician when the initial treatment regimen is nonsurgical, no diagnostic testing has been completed, and the employee has not returned to work. The clear intent of these two provisions is to prevent medical treatment at the outset of the claim from being hindered by what the legislature views as unnecessary disputes over medical necessity. This change was effective May 18, 2017.

II.                New Regulations Enacted by Tennessee Bureau of Workers’ Compensation

In 2017, the Bureau of Workers’ Compensation was quite active updating several sets of workers’ compensation regulations.

For instance, the regulations governing utilization review were amended in January 2017. For the most part, the time requirements of a utilization review have remained unchanged. An employer shall submit a case for utilization review within three business days of the notification of recommended treatment.  Once sent, the utilization review organization must render a determination about medical necessity within seven business days of receipt. However, a regulatory change for 2017 provides that a utilization review decision to deny a recommended treatment shall remain effective only for a period of six months from the date of the decision without further action by the employer. Thus, any requests that come from the treating physician with regard to the same type of treatment remain prohibited under that initial utilization review denial for a period of six months.  However, there can be circumstances in which the treating physician documents some material change that supports a new review or other pertinent information that was not used by the utilization review organization in making its initial determination. The new regulations also clarify that treatment recommendations shall not be denied if they follow the Bureau’s adopted Medical Treatment Guidelines.

Another important set of regulatory changes from June 2017 involved the implementation of new procedures for penalty assessments and contested hearings. The new regulations clarify that a Bureau employee may accept information concerning possible non-compliance or a possible rule violation from another Bureau employee, from within the Bureau, from within the Department of Labor, from other governmental agencies, through an investigation or inspection, from governmental records, or from any lawful source. Unsurprisingly, this represents a great expansion of the possible sources where a penalty referral can originate. The new regulations also outline a comprehensive and detailed procedure for the initiation, investigation, hearing, and appeal of penalty assessments. While an in-depth discussion of these new procedures is not appropriate for this article, a definite conclusion may be drawn from the fact that the Bureau has invested so much time and energy in building this procedural structure – namely, that employers and carriers should brace up for the ramped up assessment of penalties in 2018 and beyond.

III.              New Cases from the Administrative Court System

Our third source of updates for the Tennessee Workers’ Compensation Law is the administrative court system. Since their creation in 2014, the Court of Workers’ Compensation Claims and the Workers’ Compensation Appeals Board have been busy.

One place where the courts have been focusing their attention is penalties. For instance, inBerdnik v. Fairfield Glade Community Club, the Workers’ Compensation Appeals Board referred the employer to the Penalty Program for determination of whether a penalty was appropriate for the failure to provide a medical panel.  Likewise, inJohnson v. Stanley Convergent Security Systems, a single Appeals Board judge in a concurring opinion referred the employer to the Penalty Program for investigation of Employer's actions in failing to provide Employee a panel of physicians.  Interestingly, in both cases, the employers were referred to the Penalty Program despite prevailing on the issue of whether substantive workers’ compensation benefits were owed. Again, this sends a clear message to employers that in 2018 the Bureau may heighten its enforcement efforts for the many potential penalties that exist under the Tennessee Workers’ Compensation Law.

The Appeals Board also addressed an interesting application of the Recreational Activity defense. InPope v. Nebco of Cleveland Inc., a car salesman injured his knee participating in a “mud run,” which was a recreational charity event sponsored in part by his employer, a car dealership. The employee argued that his participation was “impliedly required” by the employer, due to pressure from a co-worker and general manager. The Appeals Board rejected this argument, reasoning that although the employee may have felt peer pressure to participate, such pressure does not by itself amount to an express or implied requirement to participate. The employee also argued that participation in the event was during working hours and part of his work duties. The Appeals Board also disagreed with this argument. While the mud run did occur during normal working hours, the employee was not paid for his time away from the dealership, he was not required to sell any cars while there, and he was not required to wear any clothing to identify him as an employee of the dealership. Based on these facts, the injury was found to be not compensable.

IV.              Conclusion

While 2017 did not bring any radical changes for Tennessee Workers’ Compensation Law, we did see several important additions and clarifications to the sweeping 2014 changes that are still in the process of unfolding. Stay tuned for more changes in 2018 as the system continues to evolve.

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
www.wimberlylawson.com

April 2017

Tennessee Supreme Court Rules Death by Overdose Not Work Related

InKilburn v. Granite State Insurance Company, the injured worker sustained several different injuries in a motor vehicle accident. These injuries were accepted as compensable and the injured worker received authorized medical treatment. His medical treatment included spine surgery and the prescription of pain medications, including oxycodone. Six months following surgery, the injured worker died due to an overdose of oxycodone combined with alcohol.

The injured worker’s widow argued that the death was caused by the work injury and therefore should result in the payment of death benefits. Even though the proof at trial established that the injured worker violated doctor’s orders by taking more opioid medication than he was prescribed and by consuming alcohol while taking this medication, the widow asserted that this was due to the severe pain and anxiety from his injury.

The trial court agreed with the widow’s position, ruling that the death was a direct and natural consequence of his work injury and awarded death benefits to the widow. The Tennessee Supreme Court disagreed, finding that the injured worker’s violation of doctor’s orders constituted an independent intervening event which broke the chain of causation between the work injury and the death by overdose. Thus, the judgment of the trial court was reversed and death benefits were denied.

While this was an important victory for the employer inKilburn, Tennessee employers should take note that the Court declined to create an across-the-board rule that an overdose will always constitute an independent intervening event. To the contrary, theKilburn court stated in a footnote that it was not concluding that an individual can never prove that an overdose is the direct and natural result of the original compensable injury when a dependency or addiction to narcotics develops. The Court merely concluded that the specific facts and testimony presented in the Kilburn case failed to establish that link. So, theKilburn decision does leave that door open in future cases, e.g. where an employee overdoses but there is no showing that doctor’s orders were violated.

It is also important for Tennessee employers to remember that theKilburn case was decided under pre-July 1, 2014 law. To the extent that the pre-July 1, 2014 law may be contrary to the Tennessee workers’ compensation reform law enacted for injuries on or after July 1, 2014, theKilburn case would have limited precedential value. However, it could still be used as persuasive authority for a court deciding a similar case for an injury on or after July 1, 2014. Since the “new” law actually has a stricter causation standard than the “old” law that Kilburn was using, it might actually be harder now for an injured worker to prevail on this issue.

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

May 2013

Tennessee Governor Signs Workers’ Compensation Reform Bill

On April 29, 2013, Governor Bill Haslam signed Senate Bill 200 – House Bill 0194.  Self-titled as “The Workers’ Compensation Reform Act of 2013,” this legislation brings about the most sweeping changes of Tennessee Workers’ Compensation Law since it was first codified in 1919.

The bill has been enacted as Tennessee Public Chapter 289.  Please see our posting of April 26, 2013, for more detail as to the specific elements of this reform. 

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 2013

Tennessee Legislature Passes Major Workers' Compensation Reform Bill

After several years of gathering steam, the Tennessee workers' compensation reform movement has culminated in arguably the most significant change in the law since the statute was enacted in 1919.  The driving force behind this reform movement was the sentiment among many that rising workers' compensation costs in Tennessee was driving away business.  The reform bill (SB 0200/HB 0194) easily passed both the state senate and house, and it has been transmitted to the governor for signature.  Once signed by the governor, the new law will go into effect July 1, 2014.

The reform bill drastically changes several aspects of Tennessee workers' compensation law.  Perhaps the most visible change is that an administrative system will be adopted.  Under current law, Tennessee claims are handled by a hybrid system where the first part of the claim (e.g. temporary disability benefits, medical benefits, mediation) is administered by the Tennessee Department of Labor.  The second part of the claim (e.g. the adjudication of permanent disability and future medical expenses) is handled by the trial courts.  Under the new system, the trial courts will no longer have a role.  All issues of temporary and permanent workers' compensation benefits will be decided by the new Court of Workers' Compensation Claims, whose judges will be appointed by the Administrator of the Division of Workers' Compensation.  The Tennessee Supreme Court will remain as the ultimate level of appeal.

Another significant change in the law involves statutory construction.  The current law provides that the Tennessee workers' compensation statute is remedial in nature and is to be construed equitably.  In effect, this means that close issues are typically decided in favor of the injured worker.  However, under the reform bill the remedial construction has been eliminated.  The new workers' compensation statute states that it shall not be remedially or liberally construed, but shall instead be applied impartially favoring neither the employee nor employer.

The calculation of permanent indemnity benefits is also significantly changing under the new law.  Currently, permanent partial disability (PPD) benefits are based on either scheduled injuries (whose maximum value is determined by statute) or whole person injuries (whose maximum value is 400 weeks).  The amount of those benefits is generally determined by a multiplier system.  If the employee makes a meaningful return to work for the pre-injury employer, then PPD benefits are capped at 1.5 times the impairment rating.  If there is no meaningful return to work, then PPD benefits are capped at up to 6 times the impairment rating.  Under the new law, the determination of PPD benefits will be completely different.  For instance, all injuries will be examined as whole person injuries, and the maximum value will be increased to 450 weeks.  PPD will be calculated based solely on the impairment rating regardless of whether the employee has returned to work.  However, the employee might be eligible for additional benefits if certain conditions are subsequently present.  For instance, the PPD award may be increased by a factor of 1.35 times if the employee is not returned to work with any employer or is earning less than the pre-injury wages.  The award may be further increased by multiplying the award by the product of the following factors: (a) 1.45 times if the employee lacks a high school diploma or GED; (b) 1.2 times if the employee is more than 40 years of age; and (c) 1.3 times if the employee lives in a Tennessee county with at least 2% higher unemployment rate than the state average.  Finally, additional benefits might also be available to the employee if at the time of the award or settlement, the employee can prove by clear and convincing evidence at least three of the following four factors: (1) the employee lacks a high school diploma or GED, or cannot read and write at the 8th grade level; (2) the employee is 55 years of age or older; (3) the employee has no reasonably transferrable job skills; and (4) the employee has no reasonable employment opportunities available locally considering the employee's permanent medical condition.

Since this new system is brand new and untested, it is difficult to determine with any certainty how it will ultimately affect exposure for PPD.  Undoubtedly, some of these various factors have an element of redundancy.  In addition, it remains to be seen how these different factors might work together on a single claim.  However, according to the sponsors of the bill the end result of these changes is intended to be lower average indemnity awards for workers' compensation claims.  That is probably accurate, though an interesting open question is how this will affect the return-to-work analysis.  Under the current multiplier system, employers have a tremendous financial incentive to return injured workers back to work.  However, it would seem that there would be significantly less incentive to do so under the new system.

The causation analysis will also be affected by the new law, which changes the definition of injury to include an injury by accident, a mental injury, occupational disease, or cumulative trauma condition arising primarily out of and in the course and scope of employment.  Two years ago, the "primarily" standard was introduced for repetitive trauma conditions and the new law will now apply it to all injuries.  "Primarily" is defined to mean that the employment contributed more than 50% percent in causing the injury, considering all causes, as established by a preponderance of the evidence.  The opinion of the treating physician shall be presumed correct on the issue of causation, but this presumption may be rebutted by a preponderance of the evidence.

Another change in the law concerns panels of physicians.  Under the current law, the employer is required to provide a panel of three physicians or surgeons, not associated in practice, located in the employee's community, from which the employee may select the treating physician.  For back injuries, the panel must be expanded to four, including one chiropractor.  If the treating physician refers the employee for specialist care, the employer must then provide a new panel of three specialists, not associated in practice, located in the employee's community.  Under the new law, employers will still be required to provide an initial panel of three physicians, surgeons, chiropractors, or specialty practice groups, if available in the employee's community, from which the employee will select the treating physician.  If three or more providers are not available in the employee's community, then the panel may include providers from a 100 mile radius of the employee's community.  If the treating physician makes a referral to a specialist, the employer shall be deemed to have accepted the referral unless, within three business days, a new panel is provided to the employee.  It is important to note that both under the current law and the new law, "community" remains undefined.

The issue of medical expenses is a huge issue in Tennessee workers' compensation.   According to recent testimony in the Tennessee Workers' Compensation Advisory Council, medical costs account for approximately 67% of all costs associated with Tennessee workers' compensation claims.  This issue is also addressed in the reform act through the creation of a Medical Advisory Committee.  This committee shall consult with the Administrator, who must adopt guidelines by January 1, 2016, for the diagnosis and treatment of commonly occurring workers' compensation injuries.  Any treatment that follows the guidelines will be presumed reasonable and necessary, and this presumption may only be rebutted by clear and convincing evidence.

In summary, big changes are on the horizon in Tennessee.  Proponents of the bill claim that these reforms will result in fairer, faster, and more efficient resolution of Tennessee workers' compensation claims.  Opponents of the bill have questioned the ability of the Tennessee Department of Labor to effectively administer such a system, the perceived drastic reduction of workers' compensation benefits, and possible chilling effect on the filing of new claims in the future.  Note that since the new law will not go into effect until July 1, 2014, the Tennessee legislature will have another legislative session to further tinker with the bill if they choose.  So, stay tuned for more developments.

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