Current Workers Compensation Law Compared to the 2013 Workers Compensation Reform Act

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1 Current Workers Compensation Law Compared to the 2013 Workers Compensation Reform Act Area Addressed Current Law Reform Act Workers Compensation Division The Division of Workers Compensation operates under the supervision of the Department of Labor with the Administrator appointed by the Commissioner of Labor. The Administrator is appointed for a term of four years and can be removed by the Commissioner for nonperformance of duties. The Division of Workers Compensation operates as an independent unit of government under the supervision of the Administrator and is attached to the Department of Labor for administrative purposes only. The Administrator will be appointed by the Governor for a term of six years and can serve no more than two full terms. The Governor can remove the Administrator for cause or for nonperformance of duties. Definition of Injury (Causation) Construction of Statute Under current law, injury is defined as an accident arising within the course of employment causing disablement or death. Injury does not include an occupational disease which is separately defined. If the injury could be causally related to the work place accident, the claim is compensable. The physician treating the employee for the workplace injury must give an opinion of whether the accident the employee suffered caused the employee s injury. The physician s opinion is presumed to be correct. Requires that the statute be liberally construed in favor of the injured employee The bill expands the definition of injury to include occupational disease. Only injuries that arise primarily in the course and scope of work are compensable when all other possible causes are considered. The bill defines key phrases which were previously undefined and sets a clear standard for establishing each element of an injury. The treating physician s opinion of whether the accident caused the employee s injury is still presumed to be correct under the bill. Replaces the liberal construction with the requirement that the statute be construed fairly and impartially. Utilization Employers/insurance companies typically The bill requires the Administrator to adopt, by the 1

2 Review Employer Communication with Treating Physician Physician Selection Process contract with a third party utilization review firm to review treatment recommended by a physician for an employee who has suffered a workers compensation injury. The utilization review firm will review the treatment and determine whether it is medically necessary. There are no uniform standards for determining medical necessity. An employee whose treatment is denied can appeal to the medical director of the Workers Compensation Division. If the medical director finds that the prescribed treatment is medically necessary, the Division will order that the treatment be provided. State chancery and circuit courts have entertained suits to challenge a utilization review decision. There is no fee for appealing a utilization review decision to the medical director. Current law prohibits the employer or his representative from orally communicating with the physician providing treatment for the employee. The law also requires the employee to provide a waiver for the release of medical records before the employer may review the employee s medical records related to the employee s treatment for the workers compensation injury. Current law requires the employer to provide a panel of physicians to treat the employee and allows the employee to choose a physician from the panel. The number and type of physicians required to be included on the panel varies promulgation of rules, a set of advisory guidelines for the treatment of workers compensation injuries by The advisory treatment guidelines will be used as the standard to determine whether the treatment prescribed by the treating physician is medically necessary. Once treatment guidelines are adopted, any treatment that follows the guidelines will be presumed to be medically necessary. If the medical director finds that the prescribed treatment falls within the treatment guidelines, the Division will order that the treatment be provided. State chancery and circuit courts have entertained suits to challenge a utilization review decision and the bill will not affect that process. The bill allows the Division to charge a fee to review utilization review appeals made to the medical director of the Workers Compensation Division. The bill allows the employer or the employer s representative to freely communicate with the physician treating the employee for the workers compensation injury. The bill also removes the requirement that the employee sign a waiver before the employer will be allowed to review the employee s medical records related to treatment for the workers compensation injury. The bill simplifies the physician selection process by requiring the provision of only one panel of three physicians no matter the type of injury that the employee suffered. In cases where the treating physician refers the employee to a specialist, the employer will be deemed to have accepted the referral to the 2

3 depending upon the nature of the injury. Current law also requires an employer to provide an additional panel of specialists whenever the physician treating the employee for a workplace injury refers the employee to a specialist. specialist unless the employer provides a panel of three specialists to the employee within three business days of the referral. Assigning Permanent Impairment Temporary Total Disability Under current law, the employee s degree of permanent medical impairment is determined by the treating physician who will assign an impairment rating based on the percentage the injury has impacted the employee s overall physical condition when the injury is analyzed using the AMA Guides to Permanent Impairment, 6th edition. If the injury is to a scheduled member as defined in current law, the treating physician will assign an impairment rating that reflects the percentage the injury has impacted the physical condition of the scheduled member. The rating provided by the treating physician carries the same weight in court as the opinion of any other doctor who evaluates the employee for the purpose of assigning an impairment rating only. Impairment ratings can either be a percentage of impairment to the body as a whole or can be based on specific body parts. Under current law, an employee will receive Temporary Total Disability (TTD) benefits until an employee reaches Maximum Medical Improvement (MMI) and an impairment rating is assigned by the treating physician. This process can sometimes take up to 30 days. TTD Under the bill, the treating physician will continue to assign an impairment rating to the employee. However, all impairment ratings will be assigned as a percentage of impairment to the body as a whole using the AMA Guides to Permanent Impairment, 6th edition. The list of scheduled member injuries will be eliminated. The impairment rating provided by the treating physician will be presumed to be accurate. The presumption of accuracy can be overcome by presenting contrary evidence that satisfies a preponderance standard. Under the bill, Temporary Total Disability (TTD) benefits are capped when the employee reaches Maximum Medical Improvement (MMI) even if no impairment rating is issued. TTD benefits are capped immediately when the treating physician has stopped all active medical care and the employee is only receiving pain management treatment. No additional 3

4 Permanent Partial Disability benefits can continue for up to 104 weeks if the employee suffers a mental injury. Employee s date of attaining MMI may be postponed while the employee receives pain management treatment even when all other active treatment has ended. TTD payments made after the date the employee reaches MMI are not automatically offset against the employee s permanent disability award. Under current law, the employee can receive up to 1.5 times the impairment rating (based on various factors including age, employment opportunities, skills, education) in permanent disability benefits only if he returns to work for his pre-injury employer. The employee can receive up to 6 times his impairment rating if he does not return to work or returns to work at less than 100% of his pre-injury wage for his pre-injury employer. Recovery is based on 400 weeks of benefits. The employee can seek reconsideration if the employee is terminated within 400 weeks of date the employee returned to work. weeks of TTD will be paid for mental injuries following a physical injury after MMI. TTD payments made after the date of MMI will be offset against permanent benefit payments. MMI occurs when active medical treatment ends. Under the bill, an employee receives permanent disability benefits equal to his impairment rating if he returns to work with any employer earning 100% of his pre-injury wage. The employee will receive additional benefits if he does not return to work or returns to work making less than his pre-injury wage. The amount of additional benefits can be increased if the employee is over forty years of age, or does not have a diploma or GED or if the county where the employee worked before his injury has an unemployment rate that is 2% points or more higher than the state average. Recovery under the bill will be based on 450 weeks rather than 400 weeks. The employee will no longer have 400 weeks following his return to work to file a claim for reconsideration. Instead, the employee will be entitled to file a claim for increased benefits as detailed above if the employee is not working when the number of weeks in the initial permanent benefit has elapsed. 4

5 Dispute Resolution Tennessee uses a unique hybrid format mixing elements of an administrative process and a judicial process. Administrative Process: The administrative process is twofold. Phase I: If the parties dispute whether the employee should receive temporary disability or medical benefits, they may apply to the Division of Workers Compensation for the assistance of a workers compensation mediating specialist who will mediate the dispute so that the parties can reach an agreement. If the mediation is unsuccessful, the dispute is passed to an attorney workers compensation specialist to consider whether the employer should be ordered to provide temporary disability or medical benefits. If benefits are ordered, they continue until the employee reaches Maximum Medical Improvement. Phase II: After the employee reaches Maximum Medical Improvement, the parties participate in a benefit review conference where a mediating specialist mediates the claim so that the parties can reach an agreed settlement. If the parties agree, the process ends. If the parties do not agree, the mediating specialist issues an impasse report which frees either party to file a claim in court. The bill contains elements of alternative dispute resolution and a court hearing. Alternative Dispute Resolution: Either party seeking review of any disputed issue may file a petition for benefit determination with the Division. After the petition is filed, a mediator will mediate the dispute. During mediation, the parties will send a representative with authority to settle the claim. The parties will discuss all disputed issues including compensability and temporary benefits and try to come to an agreement. If settlement is reached, the process ends. If the parties cannot agree, the mediator will issue a dispute certification notice detailing all the issues upon which the parties cannot agree. After the dispute certification notice issues, either party has sixty days to file a petition for a hearing before a workers compensation judge in the newly created court of workers compensation claims which will be housed in the Division of Workers Compensation. Judicial Process: Workers compensation judges will hear claims under the same rules as a circuit or chancery court. The judges will be licensed attorneys with at least five years of experience in workers compensation law. They will serve six-year terms with a limit of serving no more than three full terms. The judges will be employees of the Division and will be appointed by the Division Administrator. The decisions of a workers compensation judge can be appealed to the workers compensation appeals board. The workers compensation appeals board will be separate from the court of workers compensation claims. The Governor will appoint three licensed 5

6 Judicial Process: The parties file their claim and have a bench trial. Either party may appeal the decision to the Supreme Court. attorneys with at least seven years experience in workers compensation law to serve on the appeals board. The appeals board judges will serve six-year terms and are limited to serving two full terms. Further appeal of a decision by a workers compensation judge may be made to the Supreme Court. Ombudsman Program The Division has a workers compensation specialist program to assist injured or disabled employees, persons claiming death benefits, employers and other persons in protecting their rights and obtaining information available under workers compensation laws. This assistance is provided by the workers compensation specialist in addition to their mediation responsibilities and by specialists who respond to calls to the Division s Help Line. This bill creates a robust education and assistance program with a focus on providing information and assistance to employees who are pursuing their claim without the services of an attorney. An Ombudsman would act as a neutral party by providing education concerning the rights and obligations of all parties and service providers, effective direction on the preparation of forms, and the process of resolving disputed issues. Ombudsmen would provide no legal advice. 6

7 Reporting No statutory requirement Division of Workers Compensation shall begin providing every member of the General Assembly with an annual report beginning in Sunset No sunset in current law The workers compensation program will sunset in 2018 and must be reconsidered for extension. 7

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