Category Archives: Tennessee Workers’ Compensation

Tennessee Workers’ Compensation Reform

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The following article is a disturbing glimpse into how Tennessee Workers’ Compensation is being reformed in our Legislature:

Open-Mic Gaffe: Powerful Chairman Vows to Ram Workers’ Comp Bill Through His Committee

Posted by Jeff Woods on Wed, Mar 6, 2013 at 1:47 PM

For embarrassing open-mic gaffes, it’s not exactly up there with Ronald Reagan joking about bombing Russia. But it’ll do until something worse comes along for state Rep. Jimmy Eldridge, the Republican chairman of the House Consumer and Human Resources Committee.

Eldridge was caught by the legislature’s streaming video equipment complaining to a couple of people who appear to be constituents about this letter to the editor in the Jackson Sun. The letter criticizes Gov. Bill Haslam’s workers’ compensation bill, which rigs the system for employers. After making a few disparaging remarks about the letter writer, Eldridge promises to ram the bill through his committee.

“I’m going to take care of that bill,” he says. “That freight train is going off …”

So much for fair hearings and the deliberative legislative process.

Eldridge also says the bill’s critics are only “trying to rouse employees …”

“Uneducated people,” the unidentified woman in the video interjects.

“… and scare them to death,” Eldridge continues.

“I can assure you of this,” he adds, “that bill is flying …” Then he stops himself and looks at the microphone.

“Let’s make sure that thing’s not on,” he says, a little late. “You gotta be careful. Let’s get away from it.”

We tried to ask Eldridge about his remarks, but he wouldn’t agree to talk to us. Mary Mancini of the pro-labor Tennessee Citizen Action watched the video and gave this reaction:

“This is a complicated issue that is going to affect tens of thousands of Tennesseans when they are at their most vulnerable. It shouldn’t be ‘freight-trained’ through any committee. It should be given the careful and thoughtful review that an issue if this magnitude deserves.”

This morning, the bill cleared the House Consumer and Human Resources Subcommittee whose chair, Rep. Susan Lynn, wouldn’t agree to hear from injured workers in attendance and hoping to testify. She said they could all speak once the bill is heard in Eldridge’s full committee. We hope they can talk fast.

Workers’ Compensation Drug Testing May be Unconstitutional

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The Tennessee Attorney General issued an opinion on April 17, 2012, concerning the constitutionality of requiring claimants receiving pain management treatment under the Workers’ Compensation Act to agree in writing to submit to random drug tests.  According to the opinion, “A court would most likely find the drug testing provision . . . constitutionally suspect under the Fourth Amendment of the United States Constitution and Article 1, Section 7 of the Tennessee Constitution.”  Opinion No. 12-47.

2012 Workers’ Compensation Legislative Changes (Tennessee)

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The maximum weekly benefit rate for temporary disability benefits for injuries occurring from July 1, 2012 through June 30, 2013 is $886.60.
The maximum weekly benefit rate for permanent benefits for injuries occurring July 1, 2012 through June 30, 2013 is $806.00.
The Legislature also added provisions with regard to pain management. Now, if a claimant is referred for pain management, the panel must include physicians within 175 miles from the employee’s residence or place of employment. Moreover, the employee is not entitled to a second opinion with regard to pain management, and the employer may use utilization review with regard to pain medication. The legislation further provides that if the claimant violates the terms of the prescription medication agreement with the physician more than once, the claimant shall not be entitled to receive pain management through workers’ compensation.
Venue: A suit may be filed in the county in which the employee resided at the time of the injury or in the county where the injury occurred.

Physical Injury can cause compensable mental injury

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In Norwood v. Maytag Corp., (Tenn. W.C. Panel 4/30/2012), the employee injured his neck while working, which resulted in a “mood disorder . . . with major depressive-like episode.”  Basically, the neck injury aggravated the employee’s pre-existing mental condition.  The reviewing court upheld the trial court’s ruling that the employee was 95% permanently disabled.

Discovery Rule in Tennessee Workers’ Compensation

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In an important decision from the Tennessee Supreme Court issued yesterday, the Court re-affirmed the “discovery rule” in Tennessee Workers’ Compensation cases. According to the Court: “The statute of limitations commences to run ‘at that time when the employee, by a reasonable exercise of diligence and care, would have discovered that a compensable injury had been sustained.’ Bellard v. Baptist Hosp., Inc., 559 S.W.2d 788, 789-90 (Tenn. 1978) (construing section 203). The question of whether a plaintiff has exercised reasonable diligence and care in discovering that he has a cause of action, however, is a question of fact.” Ameristeel, Inc. v. Ratliff, (Tenn. June 7, 2012).

Aggravation of Preexisting Condition

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The case of Buttrey v. Altria Group Inc., (Tenn. W.C. Panel 4/24/2012), is a good example of an important rule of law in Tennessee Workers’ Compensation cases.  In Buttrey, the employee injured her neck while working in 2001. She treated conservatively and didn’t miss any work.  In 2005, she again experienced neck pain with radiculopathy, but didn’t miss any work.  In April of 2009, the employee was performing lifting activities at work and began to experience excruciating neck pain.  An MRI revealed degenerative changes in the neck and a surgery was performed in August of 2009.  The treating doctor testified that the employee had pre-existing degenerative disc disease that was exacerbated by her work activities in April of 2009.  The employer hired a doctor who testified that there was no evidence of a work related injury or exacerbation.  The Court ruled in favor of the employee (plaintiff), noting that lay testimony in conjunction with medical evidence was sufficient to establish the the employee’s work activities advanced the severity of her pre-existing degenerative disc disease in April 2009.

Death Claim from Medication Denied (Tennessee Workers’ Compensation)

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Employee sustained compensable back injury that was treated with prescription medication. Five weeks after his injury, the employee died from hypovolemic shock due to gastrointestinal bleeding. The employee’s spouse file for workers’ compensation death benefits alleging that the employee’s death was caused by the prescription medication. An expert witness testified that the employee’s use of Naprosyn “precipitated the peptic ulcer and contributed to the bleeding”, but the court found that there was not a sufficient causal link between the medication and the death. The Court indicated that the fatal gastrointestinal bleed was caused by esophageal varices resulting from alcoholic cirrhosis of the liver. Marine Accessories Corp. v. Woods, 37 TAM 23-4, 5/3/2012 (Tenn.W.C. Panel).

TCA 50-6-204(g)(2)(D)(ii) Declared Void

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TCA 50-6-204(g)(2)(B) allows a Department of Labor Specialist to award attorney fees on post-settlement/judgment medical issues under the Tennessee Workers’ Compensation Act.  Last month, the Davidson County Chancery Court found that judicial review of such awards, provided for by TCA 50-6-204(g)(2)(D)(ii), violates Due Process, and is therefore void.  The ramification of this decision is to essentially strip the Department of Labor of the ability to dispose of post-settlement/judgment medical issues in workers’ compensation cases.  Workers’ compensation practitioners would be wise to avoid using the TNDOL process to handle post-settlement/judgment medical issues.

Important Tennessee Workers’ Compensation Cases – 2011: Causation

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Quite often, a major issue in workers’ compensation cases is causation.  A good example is the case of Bright v. Shoun Trucking Co., where the truck driver claimed injuries to his shoulders and wrists as the result of the upper extremity position requirements of driving a tractor trailer.  In the Bright case, the trial court ruled in favor of the employee, and the ruling was affirmed on appeal.

Important 2011 Tennessee Workers’ Compensation Cases – Idiopathic Injuries

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So called “idiopathic” injuries can be problematic in the workers’ compensation context.  For example, in Veller v. Wackenhut Services, Inc., a workers’ compensation panel denied coverage for an employee who suffered a knee injury while standing and reaching for paperwork located on a shelf near his work station.  If you are hurt on the job, you may encounter a denial of your claim based upon the “idiopathic” injury defense.  It is important to contact an attorney to ensure that your rights are protected. 

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