Overview of Tennessee Workers Compensation 2009 1
Programs Within the Tennessee Workers Compensation Division The Workers Compensation Division manages ten different programs concerning employees and employers rights and responsibilities. They are: Claims and Coverage Dark Ages (1919) The Second Injury Fund 1946 Benefit Review 1992 Case Management/Utilization Review 1992 The Drug Free Workplace Program 1996 The Uninsured Employers Fund (UEF) 2001 The Penalty Program 2004 The Medical Fee Schedule 2005 The Medical Impairment Rating (MIR) Registry 2005 The Administrative Review Program 2006 2
Worker s Compensation Claims T.C.A. 50-6-201 Claims have two classifications: Medical Only 1 to 7 days off work with physician statement Lost Time & Medical 8 days or more off work with physician statement Indemnity benefits are due to the claimant July 1, 2008 through June 30, 2009 58,452 Medical-Only Claims 47,824 Lost Time Claims 3
Important when to file a 1st Report Form C-20 (Employer s First Report of Injury or Illness) should be filed in all cases where the injury or illness results in: Receipt of medical treatment outside of the employer s premises, Total or partial disability from work, Retention of a permanent impairment, or death 4
Workers Compensation Coverage T.C.A. 50-6-405 Proof of coverage Received electronically from NCCI (National Council on Compensation Insurance) Coverage Verification Accessible by general public www.ewccv.com/cvs/ July 1, 2008 through June 30, 2009 101,850 Proofs of coverage received 167,562 Notices of cancellation, reinstatement, endorsements 5
Uninsured Employers Fund In fiscal year 2008-2009, the UEF conducted 4,072 investigations. The UEF penalized 205 employers for noncompliance i.e. failing to have workers compensation insurance coverage. In fiscal 2008-2009, the UEF collected penalties in the amount of $1,043,848 from non-compliant employers. 6
The Benefit Review Program T.C.A. 50-6-236-239 The goals of the Benefit Review Program are: To resolve disputes which occur in the context of a workers compensation claim, To minimize adversarial relationships between parties, and to To decrease litigation and reduce the overall costs of workers compensation claims for all parties. 7
The Benefit Review Program The Benefit Review Program offers service in four main areas: Toll-free number: 1-800-332-2667 Requests for Assistance: for temporary disability and medical benefits Benefit Review Conferences: for settlement mediation Settlement Approvals: finalization of settlements 8
Benefit Review Regional and Satellite Offices Shelby Lake Dyer Lauderdale Tipton Obion Crockett Haywood Gibson Fayette Hardeman Weakley Madison Chester Carroll McNairy Henry Benton Humphreys Hardin Stewart Henderson Decatur Perry Houston Wayne Montgomery Dickson Hickman Lewis Lawrence Cheatham Robertson Giles Davidson Williamson Maury Marshall Sumner Rutherford Bedford Lincoln Fayetteville Moore Macon Trousdale Wilson Smith Cannon Coffee Franklin De Kalb Jackson Warren Clay Bledsoe Sequatchie Grundy Marion Putnam White Overton Van Buren Pickett Fentress Cumberland Rhea Meigs Hamilton Bradley Scott Morgan Roane McMinn Polk Campbell Anderson Loudon Monroe Union Knox Blount Claiborne Hancock Hawkins Grainger Hamblen Greene Jefferson Sevier Cocke Sullivan Johnson Washington Carter Unicoi Dyersburg Clarksville Nashville Chattanooga Jackson Columbia Murfreesboro Knoxville Memphis Cookeville Kingsport 9
Request for Assistance Any party may file a Request for Assistance, seeking resolution of disputes regarding medical treatment and temporary disability benefits. Issues will be investigated by a Workers Compensation Specialist in the office assigned according to the county where the injured employee resides. If the dispute cannot be resolved by agreement, the Workers Compensation Specialist may order or deny the benefits requested. A denial may be based on either the compensability of the claim, or whether the benefits requested are appropriate under the facts and circumstances presented. 10
Reimbursement If a court later finds that an employee was not entitled to the benefits ordered by a Workers Compensation Specialist, the employer/carrier can receive reimbursement of amounts paid pursuant to the Order from the Second Injury Fund. 11
Benefit Review Conferences For injuries occurring on or after January 1, 2005 there is mandatory attendance at a BRC. Prohibits filing a case in court for accidents and injuries occurring on or after January 1, 2005 until after BRC process has been exhausted. Statute of Limitations for injuries on or after January 1, 2005 is satisfied by filing a Request for a BRC with the Division within one year of date of injury or date of last payment of benefits, whichever is later. If a settlement cannot be reached after the Benefit Review Process is exhausted, a lawsuit must be filed within 90 days of the impasse date. 12
Benefit Review Process The Benefit Review process is deemed exhausted upon occurrence of any of the following: Reaching a mediated settlement Issuance of an impasse report signed by the mediating specialist. Issuance of a waiver of the Benefit Review process. Denial Order on compensability grounds (Request for Assistance) 13
Settlement Approval Commissioner or designee is authorized to approve final settlements with same effect as court-approved settlements Settlement approvals conducted in all Benefit Review offices Commissioner s designee reviews settlement with employee in person and explains rights and benefits provided by law 14
The Benefit Review Program Stats TTD/Med: Assistance with resolution of temporary disability and medical benefits BRC: Benefit Review Conference: Mediation of final settlements Approvals: Approval of settlements reached with or without mediation FY FY FY FY FY % change 04/05 05/06 06/07 07/08 08/09 since 2004 TTD/Med 2733 4008 4987 4948 5665 107.3% BRC 6173 6976 7311 6444 7044 14.1 % Approval s 5872 6988 7053 7065 7938 35.2% TOTALS 14,778 17,972 19,351 18,457 20,647 39.7% 15
Administrative Review T.C.A 50-6-238 For all Benefit Review Orders issued on or after May 26, 2006 an aggrieved party may file a Request for an Administrative Review. An Informal Conference must be held within 10 calendar days. An Informal Conference is a telephone conference call wherein the parties present the dispute to a senior member of the Division. The Division must produce an Order disposing of the Request for an Administrative Review within 7 calendar days of the Informal Conference. The parties must comply with the Order within 10 calendar days. 16
Administrative Review July 1, 2008 through June 30, 2009 Total Number of Requests: 856 Untimely Filed: 56 Withdrawn: 59 Orders Issued: 740 Of Orders Issued Affirmed: 537 72.6% Not Affirmed: 203 27.4% 17
Penalty Program T.C.A 50-6-118, 50-6-205 & 50-6-238 The Penalty Program enforces several penalties required by statute or departmental rule, including: 1) a 25% penalty for failure to pay or untimely payment of temporary disability benefits; 2) a $10,000+ penalty for failure to comply with a Specialist s order; 3) a penalty for failure to timely file Claims forms; 4) failure to appear or provide full settlement authority at a BRC; 5) penalties for failing to comply with the Medical Fee Schedule. A 25% penalty assessed by the department is made payable to the injured employee; all other penalties are made payable to the department and become part of the Second Injury Fund. 18
Penalty Program July 1, 2008 through June 30, 2009 25% Penalties Number of Penalty Referrals: 114 Number of Penalties Assessed: 52 Total Penalties Assessed: $70,274.20 $10,000+ Penalties Number of Penalty Referrals: 33 Number of Penalties Assessed: 17 Total Penalties Assessed: $32,000.00 19
Penalty Program cont. Claims Number of Penalty Referrals: 58 Number of Penalties Assessed: 42 Total Penalties Assessed: $107,600.00 Medical Fee Schedule Number of Penalty Referrals: 5 Number of Penalties Assessed: 4 Total Penalties Assessed: $255,000.00 20
Drug Free Workplace Program T.C.A 50-9-101 et. Seq. While participation is voluntary, this program offers the employer several significant benefits, among them: A shift in the burden of proof in workers compensation claims involving a positive alcohol or drug test, Discounted workers compensation insurance premiums (by 5%), and Denial of unemployment benefits to an employee terminated because of a positive alcohol or drug test. 21
Drug Free Workplace Program For the Fiscal Year ending June 30, 2009 there were 9,087 employers participating in the Program. By the end of December 2009, there were 9,568 employers. 22
Medical Impairment Rating Registry (MIR) The MIR is a registry of Tennessee-licensed physicians in various specialties who can be requested to conduct independent impairment evaluations in order to resolve a dispute between conflicting ratings by other physicians. By the end of Fiscal Year 2008/2009: 130+ Tennessee-licensed physicians Over 230 valid requests for evaluations 23
Administrative Rules In 2009, there have been amendments to the Administrative Rules issued by the WC Division in the following areas: Medical Fee Schedule Impairment Rating by Treating Physicians Utilization Review 24
Medical Impairment Ratings (Rule 0800-2-17-.25) A treating physician is responsible for evaluating an injured employee s impairment for the injury treated by that physician. Within 21 days of maximum medical improvement for that injury, Form C30A must be submitted to employer/carrier, who must submit to WC Division within 30 days of MMI. Physician may charge no more than $250 for rating and completion of form. 25
Utilization Review (Rule 0800-02-06) Effective November 12, 2009, new regulations apply to the utilization review (UR) of recommended medical treatments and procedures. The trigger for UR is no longer a monetary amount instead it is triggered when the payor disputes the medical necessity of the recommended treatment or procedure. The UR Rules provide timelines for conducting the UR process. 26
Utilization Review (continued) The UR agent must be a TN-licensed, Board-certified doctor in the same or similar specialty as the recommending physician. The only issue under consideration during UR is medical necessity. The UR agent s decision must be in writing and distributed to all parties. Expedited appeal for UR denials only. 27
Medical Fee Schedule (Rule 0800-02-18) Adoption of March 4, 2008 reimbursement levels as a floor for all workers compensation medical charges. Division will update conversion factor multipliers via the website instead of the rules. Usual & Customary defined as 80% of billed charges. The department may assess a penalty for violations of the medical fee schedule rules of up to $10,000. 28
2009 Legislation (Access to Medical Information) Mandatory procedures enacted for obtaining medical information. Claimants must sign Release of Medical Information for each medical provider from whom information is requested. Employers must share written or oral information obtained with employee, whether specifically requested or not. Employers attorneys to provide advance notice that they will be seeking medical information. 29
2009 Legislation (Permanent Partial Disability) Reconsideration of an award of Permanent Partial Disability is not available where Employer changes ownership or corporate structure, but employee continues to be employed by successor entity at same or greater wage. An award of permanent partial disability for an employee who is not eligible to work in the U.S. is capped at 1.5 times the medical impairment rating. 30
2009 Legislation (Recreational Activities) An injury sustained while engaged in recreational activities is not compensable unless: during work hours and part of employee s duties; expressly or impliedly required by employer; it produced a direct to the employer; Occurred due to an unsafe condition that employer had knowledge of and failed to cure. 31
2009 Legislation (Mental Injuries) An employee claiming a mental injury is conclusively presumed to be at maximum medical improvement (MMI) upon the earliest occurrence of the following: When the treating psychiatrist determines MMI; 104 weeks after MMI for physical injury; or 104 weeks after date of injury if no physical injury 32
2009 Legislation (Maximum Total Benefit) The maximum total benefit for injuries on or after July 1, 2009 is 400 times the maximum weekly benefit provided by law. Temporary disability benefits are not included in the calculation of maximum total benefit. 33
2009-2010 Compensation Levels Maximum weekly benefits as of July 1: Temporary benefits--$837.00 Permanent benefits--$761.00 Minimum weekly benefit as of July 1 Temporary benefits--$114.15 Maximum compromise settlement- $5,707.50 34
Hot Issues in 2010 Construction Coverage laws Enforcement of Future Medical Treatment Medicare Secondary Payor Adjuster Training and Certification Update of General Rules on filing requirements 35
Workers Compensation Division Sue Ann Head, Administrator SueAnn.Head@tn.gov Teresa Bullington, Assistant Administrator Teresa.Bullington@tn.gov Pete Halverstadt, Assistant Administrator Pete.Halverstadt@tn.gov Website: www.state.tn.us/labor-wfd/wcomp Toll- Free Phone Number : 1-800-332-2667 36