Key Provisions of Tennessee Senate Bill 200 Effective July 1, 2014, through July 1, 2016

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1 2014 Construction of Statute Definition of Injury (Causation) Revises Section , Construction of Chapter, to indicate that for dates of injury on or after July 1, 2014, the chapter should no longer be remedially or liberally construed, but shall be construed fairly, impartially, and in accordance with the basic principle of statutory construction and this chapter shall not be construed in a manner favoring either the employee or the employer. Amends Section (12) to expands the definition of injury and personal injury by: Adding occupational diseases of the heart, lung and hypertension. Indicating an injury now must primarily arise out of and in the course and scope of employment. Providing that an injury arises primarily out of and in the course and scope of employment only if it is shown by a preponderance of the evidence that the employment contributed more than fifty-percent (50%) in causing the injury, considering all causes. Specifying that aggravation of a preexisting disease, condition or ailment is not an injury unless it can be shown to a reasonable degree of medical certainty that the aggravation arose primarily out of and in the course and scope of employment. Indicating that an injury causes death, disablement or the need for medical treatment only if it has been shown to a reasonable degree of medical certainty that it contributed more than fifty percent (50%) in causing the death, disablement or need for medical treatment, considering all causes. Indicating that shown to a reasonable degree of medical certainty means that in the opinion of the physician, it is more likely than not considering all causes, as opposed to speculation or possibility. Adding that the opinion of the treating physician, selected by the employee from the employer s designated panel of physicians is presumed to be correct on the issue of causation, but the presumption is rebuttable by a preponderance of the evidence. Employer Communication with Treating Physician(s) Physician Selection Process Amends Section (a)(2) to allows employers or case managers to communicate with the employee s authorized treating physician, orally or in writing, and each medical provider is required to release the records of any employee treated for a work-related injury to both the employee and the employer within 30 days after admission or treatment. The requirement that the employee sign a waiver before the employer, insurance carrier, third party administrator, employer attorney or division of workers compensation is allowed to review the medical records related to treatment for the workers compensation injury is removed. Amends Section (a)(3) to require the provision of only one panel of three reputable physicians, surgeons, chiropractors or specialty groups no matter the type of injury the employee suffered. If the treating physician refers the employee to a specialist, the referral is deemed to have accepted the referral, unless the employer provides a panel of three specialists to the employee within three business days. Temporary Total Disability Amends Section (1)(E), to indicate that when the date of injury is on or after July 1, 2014, for other than a mental injury, the injured employee is conclusively presumed to be at maximum medical improvement (MMI) when the treating physician ends all active medical treatment and the only care provided is for the treatment of pain. Provides that the employer will be given credit against an award of permanent disability for any amount of temporary total disability (TTD) benefits paid to the employee after the date that the employee attains MMI as determined by a workers compensation judge. Temporary Partial Disability Amends Section (2) to increase the maximum total benefit to 450 weeks times one hundred percent (100%) of the state s average weekly wage, instead of 400 weeks for injuries occurring on or after July 1, New subdivision (B) is added and indicates that in all cases of temporary partial disability 1

2 (TPD) for claims with a date of injury on or after July 1, 2014, the compensation shall be sixty-six and two-thirds percent (66 2/3%) of the difference between the average weekly wage of the worker at the time of the injury and the wage the worker is able to earn in the worker's partially disabled condition. This compensation is to be paid during the period of the disability, but not beyond four hundred fifty (450) weeks. Payments are to be made as nearly as possible at the intervals when the wage was payable, subject to the same maximum and in no event less than the minimum weekly benefit. Permanent Partial Disability New subdivision (C) is added to provide that in any case of a dispute over the date of the employee s attainment of MMI, the employer will be given credit against an award of permanent disability for any amount of TPD paid to the employee after the date on which the workers compensation judge determines MMI. Amends Section (3) to replace the formula for determining permanent partial disability. In the case of partial disability adjudged to be permanent, at the time the injured employee reaches MMI the injured employee is to be paid sixty-six and twothirds percent (66 2/3%) of the employee s average weekly wages for the period of compensation, which is determined by multiplying the employee s body as a whole impairment rating by four hundred fifty (450) weeks. The injured employee shall receive these benefits, in addition to medical benefits whether the employee has returned to work or not. If at the time the injured employee s weekly PPD benefits are exhausted, the employee has not returned to work with any employer or has returned to work and is receiving wages or a salary that is less than one hundred percent (100%) of the wages or salary the employee received from his pre-injury employer on the date of injury, the injured employee may file a claim for increased benefits. If appropriate, the injured employee s award will be increased by multiplying the award by a factor of In addition, the injured employee s award will be further increased by multiplying the award by the product of the following factors, if applicable: 1) 1.45 if the employee lacks a high school diploma or general equivalency diploma; 2) 1.2 if the employee was more than forty (40) years of age at the time the period of compensation ends; and 3) 1.3 if the unemployment rate, in the Tennessee county where the employee was employed by the employer on the date of the workers compensation injury, was at least two percentage (2%) points greater than the yearly average unemployment rate in Tennessee according to the yearly average unemployment rate compiled by the department for the year immediately prior to the expiration of the period of compensation. In determining the employee s increased, the employer will be given credit for payment of the original award of PPD benefits. Any employee may file a claim for increased benefits by filing a new petition for benefit determination with the division no more than one (1) year after the original PPD benefit award ends. Any claim for increased benefits under subsection shall be forever barred, unless the employee files a new petition for benefit determination with the division within one (1) year after the period of compensation for the subject injury ends. Under no circumstances shall an employee be entitled to additional benefits when: 1) The employee s loss of employment is due to the employee's 2) voluntary resignation or retirement; provided, however, that the resignation or retirement does not result from the work-related disability; 3) The employee s loss of employment is due to the employee's misconduct connected with the employee's employment; or 4) The employee remains employed but received a reduction in salary, wages, or hours that is concurrent with a reduction in salary, wages or reduction in hours that affected at least fifty percent (50%) of all hourly employees operating at or out of the same location. The employer and employee are allowed to settle the issue of additional benefits at any time after the employee reaches MMI. 2

3 Increased benefits are not available for injuries sustained by an employee who is not eligible or authorized to work in the United States under federal immigration laws. If an employee has previously sustained an injury compensable under this section and has been awarded benefits for that injury, the injured employee shall be paid compensation for the period of temporary total disability or temporary partial disability and only for the degree of permanent disability that results from the subsequent injury. Assigning Permanent Impairment Amends Section to provide the following regarding the assignment of impairment ratings: All permanent impairment ratings are to be assigned by the treating physician. The treating physician is to utilize the applicable edition of the AMA guides established by this chapter. Within six (6) months of the release of a new edition of the AMA guides, the medical advisory committee must conduct an evaluation of the new edition, report the committee s findings to the administrator and recommend to the administrator whether the new edition should be designated. The administrator must report the committee s finding and recommendation to the general assembly. Deletes the scheduled members list and requires that the treating physician assign impairment ratings as a percentage of the body as a whole without consideration of pain complaints in calculating the degree of impairment. Subjects an employee who fails to attend a scheduled evaluation for purposes of assigning an impairment rating without justifiable cause to sanctions up to and including dismissal of the employee s workers compensation claim. The administrator is to establish by rule time limits for the scheduling of the evaluation and the completion and submission of the impairment rating report. The treating physician s written opinion of the injured employee s permanent impairment rating shall be presumed to be the accurate impairment rating. This presumption shall be rebuttable by the presentation of contrary evidence that satisfies a preponderance of the evidence standard. Access to Medical Records Amends Section (a)(2) to allow employers, the employer s attorney, the employer s insurance carrier or third party administrator, case managers or utilization review agent to communicate with the employee s authorized treating physician, orally or in writing, and each medical provider is required to release the records of any employee treated for a work-related injury to both the employee and the employer within 30 days after admission or treatment. Deletes requirement that an employee claiming workers' compensation benefits provide the employer or the division of workers' compensation a signed, written medical authorization form addressed to a specific medical provider authorized. Alternative Dispute Resolution Amends Section by replacing all references to section with references to section , and replacing every mention of the phrase benefit review conference in the section and replacing it, instead, with the phrase alternative dispute resolution. Section is amended to require the administrator to establish a workers compensation mediators program to assist injured or disabled employees, persons claiming death benefits, employers and other persons in protecting their rights, resolving disputes, and obtaining information pertinent to workers compensation laws and practices. A workers' compensation mediator will not be an advocate for either party and must mediate all issues without favor or presumption for or against either party. A mediator has no authority to order the provision of workers compensation benefits. The mediators will conduct alternative dispute resolution. When mediation is held, a person representing the employee and the employer, or the employer's insurer, with the authority to settle, must attend. Parties entering into mediation must be prepared to mediate all disputed issues at the beginning of mediation and are required to mediate all issues in good faith. 3

4 When a mediator determines that a party is not prepared to mediate as required or believes a party is not mediating in good faith, the mediator shall include comments to that effect in the dispute certification notice. A civil penalty of not less than fifty dollars ($50) or more than five thousand dollars ($5,000) may be assessed the party or their representatives that violate rules established to enforce this subsection. If the parties are unable to reach settlement of any disputed issues, the mediator must issue a written dispute certification notice setting forth all unresolved issues for hearing before a workers compensation judge. No party is entitled to a hearing before a workers compensation judge to determine temporary or permanent benefits or to resolve a dispute over the terms of an agreed settlement of a workers compensation claim, unless a workers compensation mediator has issued a dispute certification notice setting forth the issues for adjudication by a workers compensation judge. Medical Bill Disputes Section (f), is amended to provided that if the employee fails to appear and participate in alternative dispute resolution as scheduled by the division, a workers compensation judge has the authority to dismiss the employee's claim by sending a copy of the order of dismissal by certified mail with return receipt requested to the employee's last known address. The order of dismissal for failure to participate in alternative dispute resolution shall become final and the claim is forever barred, unless the employee contacts the division to schedule mediation and attends mediation within sixty (60) days after the date on which the workers compensation judge enters the order of dismissal. If the employee complies with the requirements of this subsection within the timeframe provided, the workers compensation judge will rescind the order dismissing the employee s claim for failure to participate in alternative dispute resolution. Amends Section to create a medical payment committee to hear disputes on medical bill payments between providers and insurers and advise the administrator on issues related to the medical fee schedule and medical care cost containment in the workers compensation system. Members will be representative of the medical provider industry and the workers compensation industry and serve without compensation, except for reimbursement for travel expenses when engaged in the conduct of their official duties. The medical payment committee will have the authority to render decisions on medical bill disputes between providers and insurers. If the medical payment committee determines that a provider or insurer has acted in bad faith in refusing to provide payment for a medical bill or refusing to provide reimbursement for overpayment, upon a majority vote the medical payment committee shall refer the provider or insurer to the division for consideration of assessment of a civil penalty of no more than $1,000 per occurrence. Ombudsman Program The aggrieved provider or insurer has the right to seek review of the penalty assessment.. Adds a new section to the Tennessee Code to establish a workers compensation ombudsman program to assist injured or disabled employees, persons claiming death benefits, employers, and other persons in protecting their rights, resolving disputes, and obtaining information available under workers compensation laws. The ombudsman program is available only to those individuals or organizations that are not represented by an attorney in the claim for workers compensation benefits. No statement, discussion, evidence, allegation or other matter of legal significance that occurs in the presence of an ombudsman is admissible as evidence in any other proceeding. The division has authority to assess a civil penalty against any person or organization, with the exception of the state or a representative of the state that refuses to cooperate with the services provided by an ombudsman. 4

5 Penalties Amends Section that addresses the establishment and collection of penalties to delete penalties for: Late filing of notice of change in benefit payments; Late filing with department of notice of filing lawsuits by employees or employee representatives; Late filing of judgments by insurance companies or by employers, if self-insured. Penalties are added for: Failure of any party to appear or to mediate in good faith at any alternative dispute resolution proceeding; Failure of any party to comply, within the designated timeframe, with any order or judgment issued by a workers compensation judge; Performance of any listed action in Section in relation to any proceedings in the court of workers compensation claims; Failure of any employer to timely provide medical treatment made reasonably necessary by the accident and recommended by the authorized treating physician or operating physician; Failure of an employer to timely provide a panel of physician that meets the statutory requirements of this chapter; Wrongful failure of an employer to pay an employee s claim for temporary total disability payments; Wrongful failure to satisfy the terms of an approved settlement; and Refusal to cooperate with the services provided by an ombudsman. Attorney Fees Amends Section (4)(A)(iii) to provide that for injuries occurring on or after July 1, 2014, attorneys fees in contested cases of permanent disability shall be calculated upon the first four hundred fifty (450) weeks of disability only. Amends Section by a subsection that indicates In addition to any attorneys fees provided for in this section, the court of workers compensation claims may award attorneys fees and reasonable costs, including reasonable and necessary court reporter expenses and expert witness fees for depositions and trials incurred when the employer fails to furnish appropriate medical, surgical and dental treatment or care, medicine, medical and surgical supplies, crutches, artificial members and other apparatus to an employee provided for in a settlement or judgment under this chapter. Workers Compensation Appeals Board Adds a new section that establishes a Workers Compensation Appeals Board to hear appeals from the Workers Compensation Claims Court. The Workers Compensation Appeals Board will consist of three judges appointed by the governor. Final appeal of decisions by the Workers Compensation Appeal Board will be to the Tennessee Supreme Court. Statute of Limitations Medical E-Billing Amends Section by requiring the filing of a petition for benefit determination within one (1) year of either: 1) The date of injury, in cases where the employer was provided notice, but has not paid workers compensation benefits or behalf or to the employee; or 2) In instances when the employer has voluntarily paid workers' compensation benefits, the latter of the date of the last authorized treatment or the time the employer ceased to make payments of compensation to or on behalf of the employee. Amends Section to indicate that on after July 1, 2014, the administrator, in cooperation with the commissioner of commerce and insurance, will adopt rules regarding the electronic submission and processing of medical bills by health care providers to insurance carriers. Insurance carriers are required to accept medical bills submitted electronically by health care providers in accordance with the administrator s rules. The administrator will establish by rule the criteria for granting exceptions to insurance carriers and health care providers who are unable to submit or accept medical bills electronically. 5

6 Notice Requirements 2015 Bill Impact Review 2016 Treatment Guidelines Deletes subsection (c ) of Section , which requires the insurer, employer or selfinsured or trust to file a wage statement with the department detailing the employee's wages for the previous 52 weeks, unless the employer stipulates that the maximum weekly workers' compensation rate applies. Deletes requirement that the insurer provide written notice to the division whenever it appears that the amount of medical benefits to which the employee may be entitled will exceed $5,000 and the division will notify the employer. Amends Section to requires that the Division of Workers Compensation review the impact of the Workers' Compensation Reform Act of 2013 on the workers compensation system in this state on or before July 1, 2015, and annually thereafter through Amends Section to provide that in consultation with the administrator s medical advisory committee, the administrator, by rules to become effective on January 1, 2016, is required to adopt guidelines for the diagnosis and treatment of commonly occurring workers compensation injuries. Click here to view a summary of the bill prepared by the Tennessee legislature. Any treatment that explicitly or reasonably follows the treatment guidelines adopted by the administrator has a presumption of medical necessity for utilization review purposes. This presumption shall be rebuttable only by clear and convincing evidence that the treatment erroneously applies the guidelines or that the treatment presents an unwarranted risk to the injured worker. The administrator may assess a reasonable fee, not to exceed two hundred fifty dollars ($250), for an appeal of any utilization review decision. 6

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