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  1. 1. TN Workers’ Comp Chronicle January 2012 Inside This Issue: • Bluegrass Office Opened • 2012 Changes • Drug Free Workplaces • 2011 Case Law Review -MIR -IME -SOL -TPD • Statistical Data Report Findings Moore, Ingram, Johnson & Steele LLP (865) 692-9039 MIJS Opens Louisville, Kentucky Office MIJS is proud to announce the opening of our newest office location in Louisville, Kentucky. The opening of this office will allow MIJS to provide excellent legal representation to clients throughout the entire state. The new office is located at 9900 Corporate Campus, Suite 3000 Louisville, KY 40223. Troy Hart was recently sworn in by the Kentucky Supreme Court and is excited to begin servicing the Bluegrass State. Please contact Troy Hart to discuss how MIJS can meet your legal needs in Kentucky. Changes in 2012 2012 promises to be an interesting year for Tennessee’s workers’ compensation system. With new leadership at the helm, the Tennessee Department of Labor has announced forthcoming changes to the Benefit Review Process. Specifically, the Department is modifying its RFA process by placing level IV specialists—i.e. attorneys—in charge of temporary benefit determinations. Although Department attorneys have signed off on orders for some time, the Department indicates that its attorneys will be assuming a primary role in disputes over temporary benefits. Whether this will make a practical difference remains to be seen. More Reform? Nevertheless, rumor has it that Governor Bill Haslam has set his eye on more reforms to Tennessee’s current system. The General Assembly will convene on January 10, 2012, and there is a good chance that significant changes will be proposed. As always, MIJS will monitor the legislative session for any important developments. 2011 Amendments Take Hold But regardless of any additional reform, 2012 will provide an opportunity for the 2011 legislative changes to fully kick in. For instance, the ability to close future medicals will make settling claims much more interesting and require additional considerations such as Medicare’s interests. Additionally, the precise meaning of the new “primarily” arising out of standard for occupational diseases will continue to be debated in the courts. MIJS looks forward to the challenges of 2012 and plans to make the most of these new opportunities. From all of us here at the firm, Happy New Year! By: Gregory H. Fuller
  2. 2. TN Workers Comp Chronicle Page 2 of 4 Yet another reason to join the Drug Free program. On July 1, 2011, the Tennessee General Assembly enacted House Bill 2047/Senate Bill 1785, which amended and strengthened the Tennessee Workers’ Compensation Act’s Drug- Free Workplace Presumption. Specifically, the Amendment raised the evidentiary standard an employee must meet when attempting to rebut the presumption that alcohol or drug use was the proximate cause of an alleged work-related injury. Prior to the Amendment, an Employee who failed or refused to submit to an alcohol or drug test after alleging a work-related injury was presumed to have been intoxicated at the time of the alleged injury and, therefore, unable to recover under the Act. However, the presumption could be rebutted if a Court found that the employee established, by a preponderance of the evidence, that the drug or alcohol use was not the proximate cause of the injury. Preponderance Standard Generally, "a preponderance of the evidence is evidence that is of greater weight or more convincing than the New Law Strengthens Drug Free Workplace Tennessee 2011 Case Law Update evidence that is offered in opposition to it, or, evidence that as a whole shows that the fact sought to be proved is more probable than not.” Consequently, a preponderance of the evidence standard often times, allowed an employee to rebut the presumption by relying upon, menial evidence, such as witness’ testimony. Clear & Convincing Evidence Under the new law, employees must prove that their drug or alcohol use was not the proximate cause of the injury by clear and convincing evidence. Accordingly, employees can no longer rely upon self-serving proof, but rather, must submit evidence that “eliminates any serious or substantial doubt concerning the correctness of the conclusions to be drawn from the evidence” and “produces in the fact finder's mind a firm belief or conviction with regard to the truth of the allegations sought to be established.” For employers participating in the Drug Free Workplace Program, the new law is a breath of fresh air. By: Jodi Loden Not only did 2011 bring substantial legislative changes, it also provided several important developments in the courts. The following cases are noteworthy. MIR-Beyond Impairment In Courier Printing Co. v. Sims, the Tennessee Workers’ Compensation Panel ruled that the deposition testimony of a Medical Impairment Registry (MIR) physician was admissible in workers' compensation case for purposes other than permanent impairment. . At deposition, the MIR physician testified that the employee’s injuries were causally related to his employment. The Appeals Panel ruled that the testimony of the MIR physician was relevant pursuant to Rule 401 of the Tennessee Rules of Evidence and that it was admissible because there was no specific prohibition of the use of such evidence in the statute that created the MIR or the rules which implemented it. However, the Court noted that the opinions stated by an MIR physician on matters other than the degree of impairment do not carry the presumption of correctness afforded by the statute to the impairment rating. This decision is a double-edged sword. It broadens the scope of MIR physicians for better or worse. Thus, in cases where compensability is at issue, the MIR should be approached with caution. By: Sarah Best
  3. 3. TN Workers’ Comp ChroniclePage 3 of 4 2011 Case Law Review IME-What Makes It Reasonable In Irons v. K& K Trucking, the Appeals Panel confirmed that the “bar for unreasonableness” of an IME request is indeed high after a trial court denied a motion to compel a post-settlement IME. The Appeals Panel reversed finding adequate support for the employer’s request for an IME based upon 1) the opinions of the utilization review physician and 2) the opinions of a physician retained to perform a records review. In response to the authorized treating physician’s post-settlement recommendations for trigger point injections, the UR provider found that the medical records failed to document the existence of any trigger points to justify the proposed injections or note any evidence that previous trigger point injections had resulted in any improvement of the employee’s condition. Additionally, prior to settlement, the physician who performed a records review for the employer questioned the existence of a work relationship with employee’s back symptoms due to a six month delay in onset after the date of injury. The Panel reversed and granted the motion to compel an IME, because the employer had a “good faith reasonable basis for questioning both the causation and the necessity of the proposed treatment and for filing a motion for a physical examination of the employee.” This case offers a way to shake up “old dog” claims that just won’t go away. By: Roy Sparks SOL-You Knew All Along… In Mayton v. Wackenhut Services, Inc., the Appeals Panel held that a medical diagnosis is not necessary to show that an employee had knowledge that his condition was work- related for statute of limitation purposes. An employee's knowledge is a question of fact that can be shown by proof other than a doctor's diagnosis and opinion as to causation. The employee developed COPD while working as a security guard. He was first diagnosed in August 2004 and was taken out of work due to the condition in July 2005. The employee alleged that no physician told him his condition was work-related until September 8, 2006. He filed a Request for BRC on September 4, 2007. The Court ruled that commencement of the statutory limitation period under T.C.A. S 50-6-306(a) is triggered by the occurrence of 2 events: 1) when the employee is incapacitated from work as a result of the occupational disease, and 2) when the employee knows or should know that she has an occupational disease which is the cause of the incapacity to work. Because the evidence showed that the employee acknowledged that he knew his condition was work- related as of August 2006, the statute of limitations barred his claim for compensation. Take away: be sure to ask repetitive and occupational claimants when they first knew their condition was related to work. By: Stacey Shelton TPD-Concurrent Employment Stem v. Thompson Services, Inc., involved a dispute regarding the type and amount of temporary benefits an employee working two jobs was entitled to receive following an injury at one of the employee’s jobs. The work- related injury required the employee to discontinue his manual labor job with the employer although he continued in his employment as a bus driver. Because he was unable to work for an extended period under his authorized treating physician’s restrictions for the employer he sought and was awarded temporary total benefits for this period from the trial court despite his continued employment as a bus driver during the same period of time. The award for temporary total disability benefits was reversed. The Panel concluded that temporary total disability benefits are only appropriate when the employee is “wholly disabled and unable by reason of his injury to work.” Despite the disparity in the physical demands and earning capacity available between the employee’s two jobs, the fact that he was able to work at all disqualified him from
  4. 4. TN Workers Comp Chronicle Page 4 of 4 This is a legal advertisement. The articles are intended to MIJS is a value oriented law firm focused on providing customized solutions for our clients. Based in Marietta, GA, MIJS offers a full spectrum of legal services ranging from general liability to transactional tax planning. Our Tennessee offices specialize in workers’ compensation defense allowing us to aggressively minimize the overall expenses of About Moore Ingram Johnson & Steele… 408 N. Cedar Bluff Rd Suite 500 Knoxville, TN 37923 PHONE: (865) 692-9039 FAX: (856) 692-9071 E-MAIL: Online claims. By leveraging the experience of 18 comp attorneys, we help employers and insurers navigate Tennessee’s workers’ compensation system with an eye towards cutting costs. We are pleased to announce the opening of our Louisville, KY office. Please contact Troy Hart to see how MIJS can help you meet your workers’ comp goals. Advisory Council Releases New Statistics This is a legal advertisement. The articles are intended to provide background and general guidance to the TN workers’ comp system. They are not intended as legal advice as each lawsuit is unique and requires specific analysis. Please contact MIJS to discuss the details of your claim. temporary total disability benefits. Rather, the employee was only entitled to temporary partial disability benefits for the period of his inability to work for Thompson Services. He was entitled to an amount equal to two-thirds of the difference between the average weekly wage of the worker at the time of the injury and the wage he was able to earn in his partially disabled condition. The matter was remanded to the trial court to determine this amount. Take away: TPD can be tricky. So when you have a claimant with concurrent employment, be sure to get proof of any other wages the employee is earning. By: Ryan Edens A recent report published by the Tennessee Workers’ Compensation Advisory Council analyzed claims data from the past decade. The figures are derived from statistical data forms that are filed along with every workers’ compensation specialist. The report reached the following conclusions: 1) The average duration of a claim from injury to conclusion is 88.1 weeks. 2) Settlements in which complaints are filed took an average of 85 weeks after MMI. This is more than twice the time it took in 2009 and 10 to 20 weeks longer than prior years. 3) Over the past ten years, the average duration of TTD benefits has increased from 18.3 to 26.2. 4) The statewide mean for medical benefits in 2010 was $21,796.64, the highest average since the 2004 reforms. 5) Since 2004, the average PPD award for return to work body as a whole injuries has decreased by $11,000.00. The report shows that the reduction of the return to work cap multiplier from 2.5x to 1.5x has reduced PPD awards. However, the reforms appear to have increased the costs associated with temporary benefits and have not shortened the overall claims process. The full report is available at: