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  1. 1. TN Workers’ Comp Chronicle January 2013 Inside This Issue: • Business Wants Workers’ Comp Out of the Tennessee Court System • MIJS Successful Defense Cases • Unemployment Insurance Accountability Act Moore, Ingram, Johnson & Steele LLP (865) 692-9039 Business Wants Workers’ Comp out of the Tennessee Court System Regardless of whether the system is moved from the Court, the consultants recommended a “complete overhaul” of the multiplier framework for adjudicating an employee’s permanent partial disability. Tennessee has traditionally used a multiplier of between one and six times the injured the worker’s permanent impairment rating to award permanent indemnity benefits. Such awards are of course “capped” if the employee makes a meaningful return to work. The consultants believe that a more streamline and simple formula is appropriate, but the actual equation was not released. Finally, the proposal suggests setting a more definite standard for causation of an injury. As it stands, in many claims the “could be” standard allows what many believe to be conjectural medical evidence to prevail in a disputed claim. The 2011 reform took an initial bite at this apple, but based on the recommendations of the consultants, more reform may be in store. While these are the recommendations of the consultants, the Governor may have his own plans in store. He is currently studying all potential reforms and will decide whether to adopt the recommendations or pursue his own path. Regardless, it appears that another round of reform if not complete overhaul is in store for Tennessee’s workers’ compensation system. Tennessee Governor Bill Haslam’s office recently confirmed that he will propose substantial workers’ compensation reform in the 2013 legislative session. The State of Tennessee hired several outside consultants in 2012 to analyze the system and put forth recommendations. Those recommendations were recently revealed and the battle lines are being drawn for upcoming reform. Based on the consultant’s recommendation and conclusions of the Department of Labor summer study session, it appears that the reform will involve an administrative system of some sort. The devil, of course, is in the details and no concrete legislation has been set forth. However, one of the primary themes of the recommendations is the problems created by the Court’s practice of liberally construing the Workers’ Compensation Act in favor of the employee. Instead, the consultants recommended that the workers’ compensation laws be interpreted in a “neutral and even-handed” manner. The consultants also recommended a change to the administrative review process which would call for administrative law judges supplanting the traditional court process. However, the costs associated with a commission may be an issue in the legislature. By: Gregory H. Fuller
  2. 2. TN Workers’ Comp Update Page 2 of 4 Brian Brown v. Vintec– Employee was injured in 2001 while working for Vintec, which was operated as a joint venture between an American company and a Japanese company. The claim was settled based upon the 2.5 times cap in place at the time, and the employee returned to work. Some months following his return to work, the employee missed additional time and was paid some TTD. He returned to the employer after this brief period and worked continuously until he was laid off in 2010. He then sought reconsideration benefits. We argued successfully at the trial court that the 400 week clock for reconsideration benefits began to run upon his initial return to work and that his subsequent time out of work did not toll the 400 weeks. The Employee attempted to argue that his 400 weeks did not begin to run until such time as he had a “meaningful return to work” and he argued that did not occur until after the second period of TTD. The trial and appellate court rejected that argument and adopted a plain language reading of 50-6-241, rejecting a “meaningful return to work” analysis for the running of the 400 week period during which reconsideration benefits are allowed. MIJS Successful Defense Cases e Cheyenne Duffer, and Erie Insurance Co. v. Keystops, LLC – We represented the Intervening Plaintiff asserting our subrogation interest against the Defendant. During discovery, it was revealed that the plaintiff’s legal name is Jason Elmer Johnston, and that she had in fact been born a man. The plaintiff has not had sexual reassignment surgery and has not legally changed her name to Cheyenne Duffer. The Defendant moved to have the case dismissed as the Plaintiff had perpetrated a fraud upon the Court. We argued at the trial level that as the Intervening Plaintiff had no knowledge of the fraud and was not otherwise alleged to have committed any fraudulent act, we should be allowed to continue an independent cause of action. The trial court disagreed and dismissed us as well. The Plaintiff and Intervening Plaintiff each appealed. The Court of Appeals affirmed the dismissal of the Plaintiff; however, the Court reversed the dismissal of the Intervening Plaintiff, agreeing that no fraud had been perpetrated by Erie. Additionally, the Court held that even though the 6 month extension to the employee’s one year statute of limitations granted to employers under the Workers Comp Act had run, the dismissal acted as an assignment of the cause of action to the employer for 6 months. As the Intervening Plaintiff had already filed an Intervening Complaint, the Court ruled that our action was proper and could continue forward. By: Charles E. Pierce
  3. 3. TN Workers’ Comp UpdatePage 3 of 4 On January 5, 2009, the employee, a human resources director for the employer, slipped and fell after depositing the mail in the mailbox in front of the employer’s office building. Employee alleged injuries to her low back and shoulder. Employee treated with various medical providers and most notably, with Dr. Brian Holloway, an orthopedic surgeon, who performed two surgeries on employee’s shoulder to repair a torn rotator cuff. Dr. James Maguire treated the employee for her back injury. On January 8, 2009, three days after the injury, the employer’s executive director offered the employee a consulting position, which would have allowed her to sit or stand at her leisure and simply give verbal commands to others. The employee did not accept this offer but did communicate from home with a co-worker as to how to perform her job duties. On April 13, 2009, the employee received a letter from the executive director explaining that if she failed to return to work by April 17, 2009 he would consider that employee had abandoned her employment, resulting in her termination. Employee did not even respond to the letter and was terminated. The employee explained at trial that she did not return to work because of a consumer/co-worker, an intellectually disabled janitor, was a danger to her well-being because he would regularly run the hallways, scream, beat on doors, touch, hug, kiss people, and sometimes grope the Tina Kelley v. D&S Residential Holdings, LP breasts of female employees. It is important to note that the employer provides direct care services for persons with intellectual disabilities, whom the employer refers to as consumers. This specific consumer was also provided a job as a janitor in the main office where the complaining employee worked. The employee further testified that she had to routinely defend herself by pushing, pulling or blocking the consumer’s advances. The employee attempted to argue that these were unwritten job requirements that would be outside of her restrictions. On cross examination, the employee conceded that even though she had regular communication with the co-worker covering her position and occasional communication with the executive director, she had never blamed the antics of the consumer as a reason for not returning to work. She also acknowledged that she did not identify her fears of the consumer to her employer after her April 17, 2009 termination. The trial court determined that the employee was unreasonable in her efforts to return to work stating that “[T]here is no way an employer can return an employee to work if the employee does not reveal why she will not return.” Accordingly, the trial court applied the 1.5 statutory multiplier for a meaningful return to work. Employee’s counsel appealed the trial court decision to no avail. The Supreme Court Special Workers’ Compensation Appeals Panel affirmed the trial court’s judgment stating “the employer gave the By: Daniel Starnes employee every opportunity to return to her employment for the same wage and under optimum circumstances…Instead of either attempting to return to her job or offering an explanation as to why she chose not to do so, the employee simply chose not to respond at all.”
  4. 4. TN Workers’ Comp Update Page 4 of 4 The Unemployment Insurance Accountability Act of 2012 became law in Tennessee on May 9, 2012. The law adopts several significant reforms that will better serve all employers who experience unemployment claims. Most notably, the law strengthens the definition of “misconduct,” tightening eligibility requirements for unemployment benefits, and clarifying the prior standards. Under the newly enacted law, “misconduct” includes, but is not limited to, the following conduct by a claimant: (1) willful disregard of the rights or interests of the employer; (2) deliberate violations or disregard of reasonable standards of behavior set by an employer; (3) carelessness or negligence of such a degree or recurrence to show an intentional or substantial disregard of the employer’s interest or to manifest equal culpability, wrongful intent or shows an Unemployment Insurance Accountability Act of 2012 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 Knoxville & Nashville offices specialize in workers’ compensation About Moore Ingram Johnson & Steele… Knoxville Office: 408 N. Cedar Bluff Rd Suite 500 Knoxville, TN 37923 PHONE: (865) 692-9039 FAX: (856) 692-9071 E-MAIL: Online Nashville Office: 3200 West End Avenue Suite 500 Nashville, TN 37203 PHONE: (615) 425-7347 FAX: (615) 783-1665 intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to the employee’s employer; (4) deliberate disregard of a written attendance policy; (5) a knowing violation of a state regulation, which would cause the employer to be sanction or have the employer’s license revoked or suspended by the state; or (6) a violation of an employer’s rule, unless the claimant could not have reasonably known of the requirements, or unless the rule is unlawful or not reasonably related to the job. The law also enacts new work search requirements for unemployment beneficiaries, requiring contact with at least three employers per week or access of services at a career center, and provides for random audits of job search efforts. defense allowing us to aggressively minimize the overall expenses of claims. By leveraging the experience of sixteen workers’ comp attorneys, we help employers and insurers navigate Tennessee’s workers’ compensation system with an eye towards cutting costs. Please contact Troy Hart to see how MIJS can help you meet your workers’ comp goals. By: Colleen Kelley Horn