Tennessee Workers Compensation: The Year In Review Christie M. Hayes

Transcription

1 Tennessee Workers Compensation: The Year In Review Christie M. Hayes Johnson City, Tennessee (423)

2 Today s Game Plan A review of major revisions for new law claims Old Law =Injuries before July 1, 2014 New Law =Injuries on or after July 1, 2014 Notable court decisions for 2014 Best Practices for Handling Workers Compensation Injuries 2

3 And Speaking of Game Shows. 3

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5 Administrative and Procedural Changes The Division of Workers Compensation is created within the Department of Labor and Workforce Development. The Court of Workers Compensation Claims is created within the Division of Worker s Compensation. The law removes jurisdiction from the Circuit and Chancery courts The Court has jurisdiction over all contested claims for workers compensation with an injury date of on or after July 1,

6 Photo by World News Italy 6

7 A Sample Injury Safety Steve joined The Price Is Right as an intern in He regularly prepares coffee for Drew Carey and assists with manual labor projects behind the scenes of the set. Prior roles include keynote speaker of Baker Donelson's Labor and Employment Seminar in Kingsport, Tennessee. 7

8 What do I do when an injury is reported? First Report of Injury Panel of Physicians New Law on Panels: In any case when employee is injured and expressed a need for medical care, the employer must give a panel of 3 or more independent physicians, surgeons, chiropractors, or special practice groups, if available Community Requirement-100 mile radius Referrals to a Specialist A new panel may be given within 3 business days of the employer s notification of the referral 2013 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 8

9 How Are Claims Initiated/Filed? 2013 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 9

10 Petition for Benefit Determination 2013 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 10

11 Mediation and Dispute Certification Notice 2013 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 11

12 Change in Definition of Injury Old Definition An injury is compensable if it arises out of, and in the course of employment Essentially creates a could be standard New Definition An injury is compensable if it arises primarily out of and in the course and scope of employment This means: the employee must prove that when all other possible causes are considered, employment contributed more than 50% in causing the injury 12

13 Causation is a slippery slope 13

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15 Rebutting the Causation Presumption The treating physician s opinion is presumed correct on the issue of causation but may be rebutted by preponderance of the evidence Potential for increased reliance on case managers, IME physicians, and biomechanical experts Complete a job duty analysis/descriptions and focus on mechanics of that particular job Employers still take employee as you find them Incentive for employers to identify all possible causes of alleged injury. 15

16 Change in Construction of Law Old Standard: The statute must be liberally construed in favor of the employee New Standard: The statute must be construed fairly and impartially 16

17 Hearings Expedited Hearings Appeal of expedited hearings Medical Records Certification 2013 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 17

18 Initial Hearing Discovery Post Discovery Mediation 2013 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 18

19 Compensation Hearing & Settlements (a/k/a spinning the wheel for money ) Initial Award of permanent partial disability equals the impairment rating times 450 weeks regardless of work status Example: Initial PPD award for Safety Steve with a 5% rating and $500 compensation rate will equate to: 0.05 X 450 weeks X $ = $11,250 Initial Period equals 20 weeks 2013 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 19

20 New Impairment Rating Process Authorized treating physician s (ATP) rating has presumption of correctness Can be overcome by a preponderance of the evidence All impairment ratings will be to the BAW We anticipate IMEs will still be regularly utilized 20

21 PPD Benefit After Initial Benefit If Safety Steve does not return to work or does, but makes less than the pre-injury wage, then Safety Steve is eligible for additional benefits. The additional benefit is determined by multiplying the initial benefit by all that apply: Factor of 1.35 because of loss of job or pay AWW Factor of 1.45 if not HS diploma or GED Factor of 1.2 if employee > 40 years of age Factor of 1.3 if unemployment in county where employed > 2 points above state average for year prior to initial period of compensation 21

22 The Escape Clause for New Law Claims In extraordinary cases for injuries on or after July 1, 2014, the employee may receive up to 275 weeks of benefits, if the Judge determines, based on clear and convincing evidence, that limiting recovery would be inequitable given the totality of the circumstances and that, as of the date of award or settlement, 3 facts are true: 1. The employee has an impairment rating of at least 10% assigned by the treating physician 2. The ATP has certified that the employee can no longer perform the pre-injury job due to permanent restrictions. 3. Employee is not earning an AWW or salary that is greater than or equal to 70% of the pre-injury wages or salary. 22

23 Case law Update 23

24 Can an employer represent itself in the Court of Workers Compensation? Higgins v. Big K Food Market & Liquors December 8, 2014 Decision Facts Issue Short Answer Rationale Practical Considerations 24

25 Notice (my injury): Will unfamiliarity with the law excuse an employee from giving timely notice to her employer? Mosby v. McDowell Center for Children October 2, 2014 Facts Issue Short Answer Rationale Practical Considerations 25

26 When will an employee s failure to use a safety device defeat a claim? Gonzales v. ABC Professional Tree Services November 10, 2014 Facts Issue Short Answer Rationale Practical Considerations 26

27 Can the effects of medication render someone permanently and totally disabled? Cameron v. Memorial Health Care System, Inc. June 10, 2014 Facts Issue Short Answer Rationale Practical Considerations 27

28 Can an employee s testimony satisfy the primarily standard under the new law? Hosford v. Red Rover Preschool October 2, 2014 Facts Issue Short Answer Rationale Practical Considerations 28

29 Best Practices for New Law Claims File a First Report of Injury even if you dispute the claim Train supervisors regarding notice and new provisions Follow the proper procedures and fully investigate the claim before making a decision to deny a workers compensation claim If you want a physician to determine causation, provide him or her with the appropriate tools and information Increase in permanent and total disability claims? Increase in discrimination and/or retaliation claims? 29

30 That s a Wrap 30

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