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TN WORKERS’ COMP CHRONICLE January 2012

Moore Ingram Johnson & Steele, LLP
Moore Ingram Johnson & Steele, LLP
Moore Ingram Johnson & Steele, LLPMoore Ingram Johnson & Steele, LLP

TN WORKERS’ COMP CHRONICLE January 2012

TN WORKERS’ COMP CHRONICLE January 2012

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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
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
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
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:
WTH@MIJS.com
Online
www.mijs.com
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:
http://treasury.tn.gov/claims/documents/2011StatReport2010Data.pdf

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TN WORKERS’ COMP CHRONICLE January 2012

  • 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. 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. 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. 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: WTH@MIJS.com Online www.mijs.com 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: http://treasury.tn.gov/claims/documents/2011StatReport2010Data.pdf