The Administrator of the Division of Workers’ Compensation, Abbie Hudgens, selected the appointees from recommendations of this year’s Workers’ Compensation Interview Committee, composed of representatives of employers, plaintiff attorneys, defense attorneys and two former Tennessee Supreme Court justices. In an e-mail announcing their selection, Ms. Hudgens wrote, “All four of these appointees have excellent credentials and backgrounds in workers’ compensation claims. I am confident that the new judges will conduct themselves with fairness, consistency, patience and excellence.”

Robert Durham was promoted to Director of the Division’s Benefit Review Program in 2014 after serving as Assistant Director for two years. He started with the Department of Labor and Workforce Development in 2005 as a Specialist IV in the Cookeville office. Beforehand, he was a Senior Associate at Wimberly Lawson Seale Wright & Daves, PLLC with an emphasis on workers’ compensation defense. He received his law degree from the University of Tennessee and his bachelor’s from Tennessee Technological University.

Audrey Headrick was a specialist IV in the Division’s Chattanooga office. She joined the Department in 2004, after two years in private practice, where she concentrated in workers’ compensation. She earned her J.D. at the University of Memphis in 2002, and her bachelor’s from the University of Tennessee at Chattanooga in 1997.

Amber Luttrell comes to the Division from private practice as a partner with Waldrop & Hall in Jackson, where she concentrated in workers’ compensation claims and related employment litigation, personal injury and intellectual property. She received her J.D. from the University of Mississippi School of Law in 2001, and a bachelor’s in 1998 from Millsap’s College.

Dale Tipps joined the Division in 2011 and served as a specialist IV in the Benefit Review Section. Before that, he was a partner in the Nashville law firm of Levine, Orr& Geracioti, where he practiced civil litigation with an emphasis in personal injury and workers’ compensation. He graduated from Middle Tennessee State University and Scarritt Graduate School with degrees in music before receiving his J.D. from Vanderbilt University in 1994.

Resolution Process The process to resolve a dispute for a date of injury on or after July 1, 2014 begins in much the same way as claims occurring before that date do. If the parties are able to reach a resolution of all disputed issues, the mediator shall include the terms of the resolution to a written settlement agreement and file the agreement with the Clerk of the Court of Workers’ Compensation Claims.

The Clerk shall place the case on the docket and assign the case to a Workers’ Compensation Judge for a settlement approval hearing. A filing fee of $150 shall be paid to the Clerk by the employer at the time of the settlement approval hearing or within five (5) business days after the fee has been assessed by the Workers’ Compensation Judge. Payment shall be made by check, money order or by credit card.

If the parties are unable to reach a resolution of all disputed issues, and if the date of injury is on or after July 1, 2014, the Mediation Specialist shall issue a Dispute Certification Notice to the parties. The mediator shall note any issues that the parties have agreed upon in the notice as well as the remaining issues that are still in dispute, including all defenses to the claim that were raised during the mediation.

Immediately after a Dispute Certification Notice has been filed with the Clerk of the Court of Workers’ Compensation Claims, either party seeking further resolution of any disputed issues may file a Request for an Expedited Hearing in cases involving temporary benefit issues or Request for Initial Hearing in cases involving permanency issues. These Requests forms are filed with the Clerk of the Court of Workers’ Compensation Claims. A copy of the Request must be served on the opposing party or their legal counsel, if there is one. If no Request is filed within sixty (60) calendar days after the date of issuance of the Dispute Certification Notice, the Court Clerk shall docket the case and place the case on a separate dismissal calendar for a show cause hearing.

A filing fee of $150 shall be paid to the Court Clerk by the employer at the time of the conclusion of a case. A minimum fee of $25.00, per CD, will be charged for providing a copy of a recorded hearing. A Workers’ Compensation Judge is not required to hold a full evidentiary hearing before issuing an interlocutory order for temporary disability or medical benefits. An interlocutory order is an order by a Workers’ Compensation Judge that awards or denies temporary disability or medical benefits following: A review of the submitted material, or A hearing if one is convened at the discretion of the Workers’ Compensation judge, as a result of a request for expedited hearing. – See more at: http://www.tn.gov/workforce/topic/wc-court-of-wc-claims#sthash.3MPMruHi.dpuf

IMPORTANT INFORMATION FOR PHYSICIANS TO UNDERSTAND BEFORE RESPONDING TO QUESTIONS ON “CAUSATION” IN WORKERS’ COMPENSATION CASES

The Workers’ Compensation law changed significantly regarding injuries that occurred on or after July 1, 2014. One of the changes was the new and different legal criteria in your assessment of the medical aspects of your opinion on causation. According to the Tenn. Code Ann. Sect. 50-6-102(13):

“Injury” and “personal injury” mean an injury by accident, a mental injury, occupational disease including diseases of the heart, lung and hypertension, or cumulative trauma conditions including hearing loss, carpal tunnel syndrome or any other repetitive motion conditions, arising primarily out of and in the course and scope of employment, that causes death, disablement or the need for medical treatment of the employee; provided, that:

(A) An injury is “accidental” only if the injury is caused by a specific incident, or set of incidents, arising primarily out of and in the course and scope of employment, and is identifiable by time and place of occurrence, and shall not include the aggravation of a preexisting disease, condition or ailment 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;

(B) An injury “arises primarily out of and in the course and scope of employment” only if it has been shown by a preponderance of the evidence that the employment contributed more than fifty percent (50%) in causing the injury, considering all causes;

(C) 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;

(D) “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;

(E) The opinion of the treating physician, selected by the employee from the employer’s designated panel of physicians pursuant to § 50-6-204(a)(3), shall be presumed correct on the issue of causation but this presumption shall be rebuttable by a preponderance of the evidence;

It is important to understand that you are not being asked to make a legal determination of whether the injury was compensable. Your role is to provide your medical opinion on the questions in this part of the legislation; i.e., in your “medical opinion” is it more likely than not, considering all causes, as opposed to speculation or possibility that the injury contributed more than 50% in causing the death, disablement or need for medical treatment, considering all causes. Please make every effort on your first visit to address “causation.” This may not be possible if you need additional information, such as a job description, previous treatment notes, or first report of injury to make your decision, but it is in the best interest of your patient to

make the determination as soon as possible, and not that your medical opinion on causation is “undetermined.”

If you are asked to explain and issue a report regarding causation, the following information may be helpful:

1. Description of the diagnosis (or diagnoses) both in medical and lay terms, including the appropriate ICD code.

2. A complete and detailed description of the reported injury including the mechanism, time, place, and (in the case of cumulative trauma conditions) number, duration or frequency. For injuries with major violence, causation is rarely in dispute and the statement of the mechanism of injury is usually sufficient. For example: “sustained a fracture to the calcaneus as a result of a fall of 20 feet from a roof.”

3. For cases in which the incident would not be judged to injure most people, consider whether there were symptoms, pre-existing conditions, co-morbidities, prior injuries, previous surgeries or events unrelated to employment that might be important contributing factors. In the absence of other contributing factors, consider whether the start of symptoms while working can answer the questions of why the symptoms started in relationship to work. For example, a first episode of angina that occurred at work (“when”) does not necessarily mean that the work caused the later diagnosed coronary artery disease (“why”).

4. Consider whether the need for treatment was an aggravation (a permanent and documented anatomic change) of an underlying condition. Did a minor bruise to the shin cause the need for a total knee replacement when the patient had underlying three compartment arthritis, even if the arthritis had not been “symptomatic” prior to the bruise?

5. When all this information is taken together, is it more likely than not, to a reasonable degree of medical certainty, that this described injury was the cause of the need for treatment? Consider the situation which a person fell off a curb. Did the fall from a curb resulting in a fractured ankle that required surgery cause the need for long term work-related treatment for diabetes?

This change in the definition of an injury is a significant change in the workers’ compensation law. It is intended to make the law fairer and resolve disputes as early in the process as possible, but it is a significant change. Your assistance and understanding is required. If you have questions about this issue, please contact the Workers’ Compensation Division Medical Director at 615-532-8700 or Robert.B.Snyder@tn.gov.

Please note that the original author of this content is the Tennessee Department of Labor and can be found in its original form at http://www.state.tn.us/labor-wfd/wcomp/doc/CausationNoticetoPhysicians.pdf

As most people are aware, the Tennessee Workers” Compensation Reform took effect for injuries that occur on or after July 1, 2104.  Some of the changes were expected, but did you expect that a new party would be created that will significantly impact how you handle a claim?  Neither did I, but the Reform did just that and created the Ombudsman.  Before you start negotiating your first post July 1, 2104 claim, here are the details you need to know.

The Workers’ Compensation Ombudsman Program provides assistance to employees, employers or any other party in a workers’ compensation claim that is not represented by legal counsel. Any party that is not represented by legal counsel may request the services of a workers’ compensation Ombudsman by contacting the Division at its toll-free phone number—1-800-332-2667.

An Ombudsman shall have authority including, but not limited to:

• Meeting with and providing information to parties not represented by legal counsel;
• Communicating with all parties and providers in the claim;
• Assisting the parties in the completion of forms;
• Facilitating the exchange of medical records; and
• Investigating and attempting to resolve disputes without resorting to the Division’s Alternative Dispute Resolution Process and/or the Court of Workers’ Compensation.

While an Ombudsman cannot provide legal advice, an Ombudsman can:

• Provide information on workers’ compensation laws and the Division’s policies, practices, procedures, and rules;
• Inform participants of their rights and obligations under the law; and
• Assist participants in completing forms, obtaining medical records and scheduling appointments.

IMPORTANT NOTES:

• An Ombudsman cannot be called to testify in any proceeding and no statement or representation made to an Ombudsman shall be considered by a Workers’ Compensation Judge for any purpose.
• If a person or entity receiving the services of an Ombudsman obtains legal counsel in the case or dispute for which the services of an Ombudsman were sought, the person or entity shall immediately notify the Division of the representation and shall discontinue use of the services provided by an Ombudsman.

The Court of Workers’ Compensation Claims adjudicates disputed claims if the date injury is on or after July 1, 2014.  Claims involving injuries occurring on or after July 1, 2014 will no longer be resolved by an Attorney Specialist within the Division or be heard in a Chancery or Circuit Court located in most counties.  Rather, Workers’ Compensation Judges appointed by the Administrator of the Division will preside over courtrooms in each of the Division’s area offices.  To view the rules of this program, click here.

The process to resolve a dispute for a date of injury on or after July 1, 2014 will begin in much the same way as claims occurring before that date do.  One change is that the required documents or forms have new form names and designations.   If an injured worker with a date of injury on or after July 1, 2014 is having difficulty receiving a panel of physicians, temporary disability payment benefits or medical treatment related to a workplace injury, the injured worker can seek assistance with the resolution of those issues by submitting a Petition for Benefit Determination rather than a Request for Assistance.   When the form is received, the matter will be handled through a mediation process designed to resolve disputes or problems between injured workers and an insurance adjuster or employer regarding a workplace injury that involve medical or temporary disability payment benefits.

When the Petition for Benefit Determination form is received by the Division, it will be assigned to a Mediation Specialist in the area office closest to the injured worker’s home address.  The assigned Mediation Specialist is not a legal representative for either side in the dispute; but, instead serves a neutral role and will attempt to resolve the disputed issues by seeking a voluntary agreement from the parties.  This agreement can be achieved by communicating with the parties to learn about their individual concerns and positions. There are several important points to keep in mind about the process:

• If the parties are able to reach a resolution of all disputed issues, the mediator shall reduce the terms of the resolution to a settlement agreement and file the agreement with the Clerk of the Court of Workers’ Compensation Claims. The Clerk shall place the case on the docket and assign the case to a Workers’ Compensation Judge for a settlement approval hearing.
• A filing fee of $150 shall be paid to the Clerk by the employer at the time of the settlement approval hearing.
• If the parties are unable to reach a resolution of all disputed issues, and if the date of injury is on or after July 1, 2014, the Mediation Specialist shall issue a Dispute Certification Notice to the parties. The mediator shall note any issues that the parties have agreed upon in the notice as well as the remaining issues that are still in dispute, including all defenses to the claim that were raised during the mediation.  Immediately after a Dispute Certification Notice has been filed with the Clerk of the Court of Workers’ Compensation Claims, either party seeking further resolution of any disputed issues may file a Request for an Expedited Hearing in cases involving temporary benefit issues or Request for Initial Hearing in cases involving permanency issues.  These Requests forms are filed with the Clerk of the Court of Workers’ Compensation Claims.  A copy of the Request must be served on the opposing party or their legal counsel, if there is one.  If no Request is filed within sixty (60) calendar days after the date of issuance of the Dispute Certification Notice, the Court Clerk shall docket the case and place the case on a separate dismissal calendar for a show cause hearing.
• A filing fee of $150 shall be paid to the Court Clerk by the employer at the time of the conclusion of a case.

A Workers’ Compensation Judge is not required to hold a full evidentiary hearing before issuing an interlocutory order for temporary disability or medical benefits.  An interlocutory order is an order by a Workers’ Compensation Judge that awards or denies temporary disability or medical benefits following:

• A review of the submitted material, or
• A hearing if one is convened at the discretion of the Workers’ Compensation judge, as a result of a request for expedited hearing.

Any party dissatisfied or aggrieved by a final judgment of the Court of Workers’ Compensation Claims may appeal that judgment to the Workers’ Compensation Appeals Board or to the Tennessee Supreme Court.   The Workers’ Compensation Appeals Board is comprised of three (3) members appointed by the Governor and is wholly separate from the Court of Workers’ Compensation Claims.  A Request for Appeal of a Compensation Order must be made within thirty (30) calendar days of the date of the final judgment.  An interlocutory order may be reviewed by the Appeals Board if an appeal is filed with the Clerk of the Court of Workers’ Compensation Claims within seven (7) business days of the issuance of the order. 

IMPORTANT NOTES:

• If temporary disability or medical benefits are ordered, the employer shall have seven (7) business days to comply with the order or to request an appeal from the Workers’ Compensation Appeals Board.
• There is a presumption that the findings and conclusions of the Workers’ Compensation Judge are correct, unless the preponderance of the evidence proves otherwise.
• The decision of the Workers’ Compensation Judge shall become final thirty (30) days after the Judge enters a Compensation Order, unless a party seeks an appeal of the decision to the Workers’ Compensation Appeals Board or directly to the state Supreme Court.
• After an order entered by a workers’ compensation judge  has  become final, the parties subject to the order shall have five (5) business days after all appeals are exhausted to comply with the order or the noncompliant parties shall be subject to a penalty.
• Any party may be represented by a Tennessee licensed attorney in good standing at any hearing or mediation proceeding.
  • An attorney licensed outside of Tennessee may apply for admission pro hac vice.
  • Any party that is a natural person may represent himself or herself at any hearing or mediation proceeding.
  • Any corporation or other artificial person may participate through a duly authorized representative such as an officer, director or appropriate employee, but must be represented by counsel in all proceedings occurring the in Court of Workers’ Compensation Claims and the Workers’ Compensation Appeals Board.
  • No party may be represented by a non-attorney.
• All fees shall be submitted to the Clerk before a scheduled settlement approval hearing or within five (5) business days after the fee has been assessed by the Workers’ Compensation Judge.  Payment shall be made by check, money order or by credit card.
• Unless modified by the Workers’ Compensation Appeals Board following an appeal or unless a subsequent order to modify an interlocutory order for temporary disability or medical benefits is issued by a Workers’ Compensation Judge presiding over the claim, an interlocutory order shall remain in effect pending conclusion of the matter by hearing according to the procedure provided in the program’s rules.

Please note that the Tennessee Department of Labor is the author of this content and the original article can be found at http://www.state.tn.us/labor-wfd/wcomp/CourtofWorkersCompClaims_andAppealsBoard.shtml

Question:

Will claims that occur prior to July 1, 2014, but have medical treatment that extends beyond that date, be settled under the new law or the old law?

Answer:

The old law. The law that will govern a claim is determined by the date of the injury, not the date of medical treatment, maximum medical improvement, court hearing, or even settlement.  The new law will govern injuries occurring on/after July 1, 2014.

Benefits: 

Question:

What can be done if employers can’t get approval from their insurance adjusters for medical treatment, such as physical therapy, in a timely manner?

Answer:

It is the duty of the employer to ensure that benefits are provided in a timely manner.  An employer or insurance carrier may be assessed a civil penalty for failing to timely provide treatment.  Accordingly, and to avoid a potential penalty, the employer has the responsibility to work with the adjuster to ensure that approval decisions are made in a timely manner.  Additionally, an employee who is having difficulty getting treatment approved in a timely manner may come to the Division for help.  For an injury on or after July 1, 2014, an employee may file a petition for benefit determination.  For injuries prior to July 1, 2014, an employee may file a Request for Assistance.  In either case, a Division of Workers’ Compensation mediator will provide assistance to resolve the issue.  If no agreement is reached, an appropriate official with the Division will issue an order after hearing from the employee and the employer.     

Question:

If the employer’s insurance carrier fails to pay temporary total disability benefits or to provide necessary medical treatment even though the carrier was timely notified of the injury by the employer, is the carrier or the employer going to be ordered to pay any potential penalty?

Answer:

Any penalty assessed would be against the insurance carrier in this instance.  

Medical Panels: 

Question:

If the physician selected to be the attending physician by the injured employee is from a properly provided panel, but is not available when the employee gets to the doctor’s office and the injured worker is seen by the physician’s nurse practitioner, is the visit with the nurse practitioner an authorized visit?

Answer:

Yes. According to an Attorney General’s opinion if the nurse practitioner is working under the supervision of the physician and in accordance with protocols developed and/or approved by the physician, it is an authorized visit.   

Question:

When a treating physician refers an injured worker to a specialist, does the employer have three (3) business days or three (3) calendar days to provide a panel as an alternative?

Answer:

The employer has three (3) business days from the day the employer/insurer receives the specialist referral from the authorized treating physician to provide an alternate panel.  If an alternate panel is not provided, the employer is deemed to have accepted the referral. 

Question:

Does the new law remove the requirement for an employer to include a chiropractor on the medical panel in a claim for a back injury?

Answer:

Yes. For dates of injury on/after July 1, 2014, there is no requirement to have a chiropractor on a medical panel, but employers and insurers may still choose to do so.  

Question:

How much is the penalty for not providing a proper medical panel?

Answer:

The penalty can be up to $5,000 per violation.  

Access to Medical Records: 

Question:

Does the employer have the right to receive medical information about the injured worker’s medical treatment?

Answer:

Yes. The reform law allows the employer or the employer’s representative to communicate with the physician authorized to treat the injured worker for the workers’ compensation injury.  The law also removes the requirement that the injured worker sign a medical waiver before the employer is allowed to review the medical records related to the authorized treatment for the workers’ compensation injury. 

Question:

Will an employer still have to have a signed release to obtain previous medical information if the employer suspects that previous medical issues affect or relate to a reported injury?

Answer:

Yes.  A signed release will be still be required for medical records other than the records of the authorized treating physician that are directly related to the subject workers’ compensation injury.  

Ombudsmen: 

Question:

Can an employer require an injured worker to contact the ombudsman?

Answer:

No.  An employer can tell an injured worker about the ombudsmen program, but cannot require the injured employee to contact an ombudsman.  

Question:

Can the ombudsman give legal advice as well as inform an injured worker of their rights and obligations under the law?

Answer:

No.  The ombudsmen may help unrepresented injured workers and unrepresented employers by providing information, assisting with the preparation of forms, explaining the processes involved in a workers’ compensation claim, and facilitating communication among the parties, but they cannot give legal advice to either party.  

Mediations and Settlement Approvals: 

Question:

Will the current benefit review process go away and be replaced by the Workers’ Compensation judicial process?

Answer:

No. The Division will continue to work informally with parties to resolve conflicts.  Mediation will continue to be a vital part of the claims process.  Claims will move to the Workers’ Compensation judicial process only after diligent efforts to resolve differences have not succeeded.  And, claims for injuries that occur prior to July 1, 2014 will continue to be handled in the same way that they are currently handled.  

Question:

Under the law applicable for injuries before July 1, 2014, if an injured worker is entitled to a permanent partial disability benefit, there are limits on the amount of the award.   The limits are:

• Up to one and one-half (1.5) times the impairment rating if the injured worker returns to work for the same employer at the same or higher salary; and,
• Up to six (6) times the impairment rating if the injured worker has not returned to work or returns to work for the same employer but loses employment within 400 weeks of the day he or she returned to work.

Will these limits still apply to permanent benefits under the new law?

Answer:

No. There is a different benefit structure.  If the injured worker is able to return to work for any employer making at least the pre-injury wage, the permanent partial disability benefit is one (1) times the impairment rating and is available to the injured worker when he or she reaches maximum medical improvement.  If the injured worker is not able to return to work for any employer at the end of the initial benefit period (impairment rate times 450 weeks), the injured worker is eligible for additional benefits based on factors related to the inability to return to work, including age, education, and unemployment in the county in which they worked. 

Question:

Do injuries to body parts such as fingers, toes, and hands that were formerly listed as “scheduled members” under the old law get converted to a “body as a whole” injury under the new law?

Answer:

Yes.  All injuries that occur on or after July 1, 2014 will be determined on the basis of an injury to the “body as a whole.”  The 6th edition of the AMA Guides to the Evaluation of Permanent Impairment provides the information treating physicians will need to make conversions for injuries to formerly “scheduled members” of the body to “body as a whole” ratings. 

Question:

Where can I find the unemployment information for when an injured worker does not return to work?

Answer:

Unemployment rates are published each month by the Tennessee Department of Labor and Workforce Development and are available here.  

Question:

How are an injured employee’s rights to additional benefits affected if the injured employee loses his or her job due to no fault of their own, such as a job layoff?

Answer:

An injured employee’s right to additional benefits is determined by his or her employment status at the time the initial benefits period ends, so there are several factors to consider:

• If the employee is employed at the same or greater wage by any employer at the time the period of initial benefits ends, the employee is not entitled to any further benefits for that work-related injury. 
• If the injured worker is laid off during the initial benefit period and has not returned to work by the time that benefit period ends, the employee would be entitled to additional benefits. 
• If the employee keeps his or her job when the initial benefits period ends, but suffers a reduction in salary or hours that also affects at least fifty percent of the other hourly employees at the injured worker’s location, the employee would not be entitled to additional benefits.  

Question:

Are the permanent partial disability (PPD) benefits paid during the initial benefit period to be paid periodically or in a lump sum?  How are any additional benefits paid?  Can a worker settle his or her eligibility for “additional benefits” prior to the end of the initial benefit period if the worker has returned to work during that benefit period (i.e., can a worker give up the right for an amount in the future that might be more if the worker’s employment ceased sometime before the end of the initial benefit period)?

Answer:

Whether the benefits are paid periodically or in a lump sum is left up to the parties.  It is also up to the parties whether they want to settle the issue of future benefits before the period of the initial benefit has ended.   

Question:

How will impairment rating differences between the authorized treating physician and an IME physician be managed during the mediation process?

Answer:

Under the reform law, the parties may settle the entire claim at any time after the employee reaches maximum medical improvement. The parties will have discretion to determine the proper impairment rating to apply when deciding upon the settlement terms.  

Question:

Will the parties continue to have mediations in a benefit review conference and/or settlement conferences at the office of the Workers’ Compensation Division if the settlement is undisputed?  And, will settlements be approved by the Division’s workers’ compensation specialists or is there a new process in place?

Answer:

The mediations and settlement conferences will continue to be held at the Workers’ Compensation office when the settlement is undisputed, although they will not be called “benefit review conferences.”  However, all settlements of injuries that occur on or after July 1, 2014 will have to be approved by a workers’ compensation judge rather than a workers’ compensation specialist.  

Medical Causation and Evidence: 

Question:

How will treating physicians provide an opinion as to whether or not a reported injury is at least 50 percent work-related?

Answer:

The Division is preparing a form that physicians can utilize to document the 50 percent threshold. 

Question:

If a treating doctor’s rating is presumed to be correct, doesn’t that mean no one will need to get an IME (Independent Medical Examination)?

Answer:

Not necessarily.  The treating doctor’s rating is presumed to be correct, but the presumption can be overcome by a preponderance of evidence to the contrary obtained through an IME.  

Workers’ Compensation Court: 

Question:

Are there any fees for court hearings or approvals?

Answer:

There will be a $150 filing fee for all approvals.  There is no charge for the hearings.

Please note that the Tennessee Department of Labor is the author of this content and the original article can be found at http://www.state.tn.us/labor-wfd/wcomp/wc_2013_ReformAct_faqs.shtml