Workers’ Compensation Drug Testing May be Unconstitutional

By | Tennessee Workers' Compensation | No Comments

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.

New Laws Take Effect in Tennessee

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The Tennessee General Assembly adjourned on May 1, producing 597 new laws, including the following:

 “Loser Pays”: A party who is represented by an attorney can now be required to pay costs and attorney fees, up to $10,000, if a civil proceeding is dismissed for failure to state a claim. There are six exceptions to the rule, including withdrawing the complaint or in good faith amending the complaint to state a claim upon which relief may be granted, and filing a good faith, non-frivolous claim for the express purpose of extending, modifying, or reversing existing precedent. The new law applies to claims filed on or after July 1. 2012. 2012 PC 1046.

 Qualified Protective Orders: Effective July 1, 2012, upon the filing of any “healthcare liability action,” the defendant can now petition the court for a qualified protective order allowing the defendant and their attorneys the right to obtain protected health information during interviews, outside the presence of the plaintiff or his/her attorney, with the patient’s treating “healthcare providers.” 2012 PC 926.

 Trespassers:  An owner of real property owes no duty of care to a trespasser except to refrain from willfully, with negligence so gross as to amount to willfully, intentionally, or wantonly causing an injury after May 10, 2012. The new law also addresses when a possessor of real property is subject to liability for physical injury or death to a child trespasser. 2012 PC 922.

 Pain Management in Workers Compensation Cases:  Effective July 1, 2012, a new law includes within the definition of “utilization review” the prescribing of one or more Schedule II, III, or IV controlled substances for pain management for a period of time exceeding 90 days from the initial prescription of such controlled substances.  As a condition of receiving pain management that requires prescribing of Schedule II, III, or IV controlled substances, an injured or disabled employee may sign a formal written agreement with a physician prescribing the controlled substances acknowledging the conditions under which the injured or disabled employee may continue to be prescribed Schedule II, III, or IV controlled substances and agreeing to comply with such conditions. 2012 PC 1100.

 Interest Rate on Judgments: The interest rate on judgments in Tennessee has been 10%.  A new law sets the interest rate for judgments entered between July 1 and December 31 at 2% less than a formula rate per annum published by the Commissioner of Financial Institutions for June of the same year. For any judgment entered between January 1 and June 30, the interest rate on judgments is 2% less than the formula rate per annum published by the commissioner for December of the prior year. 2012 PC 1043.

Social Security Disability: Mild Mental Retardation

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20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.05.  Section 12.05 provides that the required level of severity for mental retardation is met with “a valid verbal, performance, or full scale IQ of 59 or less.” “The Secretary . . . expressly singled out individuals with Mild Mental Retardation for special treatment in determining entitlement to disability benefits.”  Brown v. Secretary of Health and Human Services, 948 F.2d 268 (6th Cir. 1991).  Per Listing 12.05, the claimant must prove that he exhibited significantly sub average general intellectual functioning with deficits in adaptive functioning that initially manifested during the developmental period (before age 22).  However, “there is a presumption that mental retardation is a condition that remains constant throughout life.”  Hodges v. Barnhart, 276 F.3d 1265 (11th Cir. 2001).  Thus, a claimant “need not present evidence that she manifested deficits in adaptive functioning prior to age 22 when she had offered evidence of low IQ test scores after age 22.” Id.   The requirement that mental retardation or low IQ beginning before age 22 is met when nothing in the record reflects an incident in which the claimant suddenly became mentally retarded.  Lowery v. Sullivan, 979 F.2d 835 (11th Cir. 1992).  In other words, the claimant is entitled to a presumption that his intellectual limitations began before age 22.

If a claimant satisfies the listing criteria he is to be found disabled per se.  Todd v. Apfel, 8 F.Supp.2d 747, 754 (W.D. Tenn. 1998); Johnson v. Sec’y of Health & Human Services, 794 F.2d 1106 (6th Cir. 1986).  A claimant who is not currently engaged in substantial gainful activity who has an impairment that meets or equals a listing is entitled to disability benefits.  Durham v. Apfel, 34 F.Supp.2d 1373, 1381 (N.D. Ga. 1998).  Even if the claimant worked previously with the severe impairment that meets or equals a listing, he/she is still entitled to a finding of disability.  Id.

“A claimant whose impairment meets a listing is disabled when not working, even if he or she worked in the past with the impairments, and even if he or she could return to his or her past work.”  Ambers v. Heckler, 736 F.2d 1572, 1576 (11th Cir. 1985).  As succinctly stated by the 6th Circuit, “if a claimant is not engaged in substantial gainful activity and also validly meets a listing, the Secretary must find claimant disabled without regard to residual work capacity, age, education, or experience.  It is not correct under the regulatory scheme to find that a claimant satisfies a listing but is nonetheless able to work.”  Johnson v. Secretary of Health and Human Services, 794 F.2d 1106 (6th Cir. 1986).

If you need assistance with your disability claim, call The Hamilton Firm.

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.

Vocational Testimony and the DOT

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During a hearing, the vocational expert will sometimes testify as to matters not covered by the Dictionary of Occupational Titles (DOT) and/or at variance with the DOT. An ALJ is required to ensure that the vocational expert’s testimony is consistent with the DOT, and if not, such conflicts must be resolved. SSR 00-4p “emphasizes that before relying upon VE…evidence to support a disability determination or decision, our adjudicators must identify and obtain a reasonable explanation for any conflicts between occupational evidence by VEs…and information in the DOT…and explain in the…decision how any conflict that has been identified was resolved.”

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

By | Tennessee Workers' Compensation | No Comments

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).

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