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  1. 1. Tennessee Workers’ Comp Chronicle June 2012 Inside This Issue: • Legislative Update: Pain Management • Willful Violation of Safety Policy Defense Revived • Cutting Edge: Advancing Pre- existing Conditions • Shoulder or C- Spine Injury? • New “Loser Pays” Law Moore, Ingram, Johnson & Steele LLP (865) 692-9039 & (615) 425-7347 2. Community Requirement: If the treating physician makes a referral for pain management, an employee is entitled to such a panel of physicians, but the community requirement will not apply as long as the office of each physician on the panel is located not more than 175 miles from the employee’s residence or place of employment. 3. Second Opinion: An employee is not entitled to a second opinion on the issue of impairment, diagnosis or prescribed treatment relating to pain management; however, one time and one time only, if the employee submits a request in writing to the employer stating that the prescribed pain management fails to meet medically accepted standards, then the employer must initiate and participate in utilization review. 4. Pain Contract: An employee may sign a formal written agreement with the qualified pain management physician as a condition of receiving pain management that requires prescription of Schedule II, III or IV controlled substances. 5. Violation of Contract: If the employee violates any of the conditions of the agreement, then the employee’s right to pain management through prescription of Schedule II, III or IV controlled substances would be terminated. For injuries occurring on or after July 1, 2012, the violation would be deemed misconduct and, therefore, an employee who is otherwise eligible to seek reconsideration would not be entitled to same. The Tennessee General Assembly is finishing up its 2012 session. After considering taking up comprehensive reforms, Governor Bill Haslam elected to reserve a potential overhaul for 2013. in order to further study the effects of the 2011 reforms that redefined “accidental injury” and restricted claims involving repetitive trauma. Accordingly, this legislative session left the Workers’ Compensation Act relatively unchanged. However, there is one very important new law involving the problems of pain management. Utilization Review & Pain Management The pain management law will become effective July 1, 2012. The intention of this new legislation is to “ensure the availability of quality medical care services for injured and disabled employees and to manage medical costs" by "eradicating prescription drug abuse through utilization review.” To reach these goals, the legislative changes will require, after July 1, 2012: 1. Utilization Review: If a claimant is prescribed Schedule II, III or IV controlled substances for more than 90 days, utilization review is required. 2012 Tennessee Workers’ Compensation Legislative Update
  2. 2. TN Workers Comp Chronicle Page 2 of 6 2012 Tennessee Workers’ Compensation Legislative Update New law seeks to curb prescription drug abuse via pain management. 6. Consequences of Violations: For injuries occurring on or after July 1, 2012, if the pain contract violation occurs prior to a finding that the employee is totally disabled, the incapacity to work due to lack of pain management may not be considered when determining whether the employee is entitled to permanent total disability benefits. 7. Disclosure of Violation: A physician must disclose an employee’s violation upon the request of the employer. 8. Termination of Pain Management: If an employer terminates the employee’s right to pain management due to a violation of the agreement, the employee may file a Request for Assistance with the Department of Labor or a Petition in court if the benefit review process has been exhausted. 9. Qualified Physicians: Only “qualified physicians” can manage chronic pain. A “qualified physician” is a physician licensed to practice medicine or osteopathy in this state and a) Board certified in anesthesiology neurological surgery, orthopedic surgery, radiology, or physical medicine and rehabilitation through the American Board of Medical Specialties (ABMS), American Osteopathic Association (AOA), or another organization authorized by the commissioner of labor and workforce development; b) Board certified by an organization listed in a specialty other than a specialty listed in (a) who has completed an ABMS or AOA subspecialty board in pain medicine or completed an Accreditation Council for Graduate Medical Education (ACGMA) accredited pain fellowship; or c) Serving as a clinical instructor in pain management at an accredited Tennessee medical training program. Impact of Law In light of this long awaited law, it will be important for employers and carriers to place “qualified physicians” on pain management and work with these providers to ensure the use of an appropriate pain contract. The 175 mile requirement is quite favorable because it allows employers and carriers to cover a large geographical area. This will permit us to carefully craft pain management panels to utilize only the best providers. The legislation is a welcome improvement and will reduce many of the headaches associated with drug seeking claimants and excessive opioid treatment. Statutory Benefit Rates The General Assembly enacted the following changes to maximum and minimum weekly benefit rates: Temporary Benefits– The maximum weekly benefit rate for injuries occurring July 1, 2012 through June 30, 2013 is $886.60. Permanent Benefits– The maximum weekly benefit rate for injuries occurring July 1, 2012 through June 30, 2013 is $806.00. Minimum Weekly Benefit– The minimum weekly benefit rate for injuries occurring July 1, 2012 through June 30, 2013 for both temporary and permanent benefits is $120.90. By: Gregory H. Fuller and Stacey W. Shelton
  3. 3. TN Workers’ Comp ChroniclePage 3 of 6 The Tennessee Supreme Court recently revised the affirmative defenses of willful misconduct and willful failure to use safety devices. In Mitchell v. Fayetteville Public Utilities, the full Tennessee Supreme Court vacated the trial court’s award of over $100,000.00 in permanent partial disability (PPD) benefits and completely denied the claim due to the Employee’s failure to follow safety rules. In the ground-breaking case, the employee sustained severe electrical burns to his hands and side when he received a substantial electrical charge while working on an electrical line. At the time of this injury, the employee was not wearing his protective gloves as he was required to do by his employer. Old Defense Elements Before this case, employer must show that (1) the employer maintains a policy requiring the use of the safety gloves, (2) the employer maintains a strict, continuous, and bona-fide enforcement of the safety rule, (3) the employee had actual knowledge of the safety rule, and (4) t the employee intended to commit the act, which includes an element of perverseness to successfully deny the claim. However, the Supreme Court recognized that this defense has only proven successful when it is clear that the employee has deliberately and intentionally violated a known and strictly enforced policy designed to prevent the employee from serious bodily harm. According to the Supreme Court, this definition was too restrictive and allowed for recovery in situations that should have otherwise been barred. New Defense Elements Thus, the Supreme Court set forth the following new standard for the affirmative defenses of willful misconduct and the willful failure to use a safety device or follow a safety rule: 1) The employer must show that the employee had actual notice of a safety rule before the injury occurs; 2) The employee must understand the danger involved in violating the rule, which essentially requires that the employee appreciate the danger involved and understand the underlying purpose of the safety rules; 3) The employer must prove a bona-fide and consistent enforcement of the safety rule. 4) The employer must show that the employee lacks a valid excuse for violating the known and strictly enforced safety. Perverseness Discarded Although the first three elements of the new test is similar to old law, the fourth element abandons the element of perverseness, which so often proved problematic in the past. Rather, the focus will now be shifted to whether the employee can offer a valid excuse for violating a safety rule. Tennessee Supreme Court Breathes New Life into Willful Violation of Safety Policy Defense In Mitchell, the court found that “convenience to the employee” is not a valid excuse for violating a safety rule, and held that even though working without safety gloves would save the employee time and make the employee’s job easier, convenience alone is not sufficient to constitute a valid excuse for violating the safety rule. Impact of Mitchell Therefore, in future cases, the element of perverseness will no longer prove problematic in applying these defenses. Instead, if the employer is able to show that an existing safety rule or policy is in place and is strictly and continuously enforced and that the employee had actual notice the rule and understood the danger involved in violating the rule, there is no longer an element of perverseness necessary to support a defense. Rather, the employee must show a valid excuse for violating this rule, or they will not receive any workers’ compensation benefits. In order to make the most of Mitchell, employers should be sure to consistently enforce their safety policies. A good written policy explained to and signed by the employee will allow employers to protect themselves from needless accidents. Please feel free to contact MIJS to discuss how to make this recent decisions work for you. By: Alex B. Morrison
  4. 4. TN Workers Comp Chronicle Page 4 of 6 While we have long known that a Tennessee employer “takes an employee as he finds him,” defining the point at which a pre-existing condition is advanced or aggravated by work activities giving rise to a claim, can be elusive in practice. The science behind gradual-onset injury, or that of a dormant pre-existing condition suddenly becoming symptomatic, can be difficult to articulate and apply to the law on causation, which prefers tangible proof of a cause and effect. Which Came First… Take for example an employee who slips and falls on her knee at work. Fortunately, x-rays show she is unharmed, and she walks away with only a bruise. Incidentally, however, the x-rays reveal her to have long-standing severe osteoarthritis. Knee replacement surgery is recommended. Did her slip and fall at work advance her arthritis such that her condition requiring surgery “arises out of” or “in the course of” her employment? What medical proof is required to show work activities or an accident made a condition “worse”? Benefit of the Doubt Because of the complex and often theoretical nature of these claims, courts often give the benefit of the doubt to the claimant. However, because of an aging workforce, claims for advancement of naturally occurring degenerative changes will continue to represent a significant exposure area; and as such, with every such claim MIJS makes it a practice of insisting that the question of whether the employer is providing treatment for the osteoarthritis or for a work injury, or for some combination of both, be sufficiently addressed. Lawmakers and courts attempt to draw clear lines and provide guiding principles, suggesting specific medical findings that physicians must point to as proof of an advancement of the severity of the underlying condition. MIJS Cutting Edge: Aggravation of Pre-existing Condition Despite these efforts to bring clarity, however, the law is far from settled; or at least applying the law is far from simple, with medical experts often disagreeing as to whether an advancement of a condition has even occurred, much less how it occurred, in any given claim. Legal standards of proof of injuries involving repetitive trauma cumulating in the onset of symptoms at times are misapplied to that of claims of an underlying condition becoming symptomatic following acute injury and accident. Applying the Correct Standard In light of the new repetitive injury law, it is important to ask the right questions in these circumstances. Causation, in the sense of whether the work environment or accident could have caused the injury in question, is often confused with the question of whether an injury has in fact occurred at all, in the form of an aggravation of an underlying condition. With a good grasp of the issues, MIJS strives to pinpoint the issue by collecting past medical records and painstakingly phrasing causation questionnaires to providers. The Bottom Line Because a “mere increase in pain” associated with a pre-existing condition is not compensable, it is important to insist that a provider adequately address advancement- aggravation instead of simply concluding that an asymptomatic condition is now symptomatic. It is also important to do so early in a claim because the longer the question lingers, the more likely it is that a provider will stand by an analytical shortcut. By asking these nuanced questions MIJS leverages the new law and ensures that degenerative conditions are properly explored before surgery is authorized. By: Amy E. Brown Increased pain or actual advancement? The devil’s often in the details.
  5. 5. TN Workers’ Comp ChroniclePage 5 of 6 One of the most difficult types of claims is the shoulder/c-spine claim. Often times the origin of the pain can be difficult to determine. A capable plaintiff’s attorney may seek to turn such a claim into two separate injuries. In order to avoid what can often morph into a nightmare claim its important to get in front of these overlapping pathologies as soon as possible. Shoulder pain can be attributed to various types of injuries. Most commonly, shoulder pain is linked to rotator cuff and SLAP tears; however, shoulder pain can also be caused by cervical radiculopathy. It has been noted in the medical literature that radiculopathy and shoulder pathology are difficult to differentiate between. Range of Motion When a claimant complains of shoulder pain, there are several tests that a physician can perform which will help determine if the pain is cervical or related to the shoulder. Upon examination, a patient with cervical radiculitis portrays painful neck motion but unrestricted passive motion of the shoulder, while a patient with a shoulder injury depicts a painless, unrestricted range of motion of the neck. Spurling Test—C-Spine In order to rule out a cervical spine injury, the Spurling’s test can be performed. This test involves rotating the patient’s head in an effort to reproduce radicular complaints. The Spurling test is positive if limb pain or paraesthesias are produced. A positive Spurling test suggests that the source of the pain is in the C- Spine which could lead to ESI’s and an EMG. Impingement Tests—Shoulder The Neer’s and Hawkins’ tests can determine rotator cuff pathology. The Neer’s test is used for the impingement of the rotator cuff tendon and is positive if the patient experiences pain. The Hawkins’ test allows the examiner to internally rotate the humerus with force. Although a cervical spine injury can coexist with a rotator cuff tear, it is uncommon. By performing the aforementioned tests, an examiner should be able to determine whether shoulder pain is attributed to an injury in the cervical spine or the shoulder. But often times, shoulder specialists will focus exclusively on shoulder pathology and spinal surgeons will concentrate entirely on cervical pathology. So when you come across one of these tricky claims, pay close attention to the initial tests and strive to have the authorized physician commit to either the shoulder or the cervical spine. In doing so, you can prevent opportunistic litigants from turning one claim into two. By: Kendra Birtsch Rotator Cuff vs. C-Spine: Identifying the Source of Shoulder Pain Differentiating between shoulder and cervical pathology is difficult but important.
  6. 6. TN Workers Comp Chronicle Page 6 of 6 Starting July 1, 2012, prospective Tennessee litigants will now have an added incentive for carefully considering the merits of their claim before deciding to file suit. The Tennessee General Assembly has recently passed a bill that will require a party who is unable to survive a TRCP (Tennessee Rule of Civil Procedure) 12 motion to pay attorneys fees and legal costs of the moving party, up to $10,000. New “Loser Pays” Law Goes Into Effect 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 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. About Moore Ingram Johnson & Steele… 408 N. Cedar Bluff Rd Suite 500 Knoxville, TN 37923 PHONE: (865) 692-9039 FAX: (865) 692-9071 3200 West End Ave. Suite 500 Nashville, TN 37203 PHONE: (615) 425-7347 FAX: (615) 783-1665 E-MAIL: Online If a motion to dismiss is granted for a complainant’s failure to state a cause of action upon which relief can be granted pursuant to TRCP 12, taking all facts in the complaint as true and drawing all reasonable inference in the complainant’s favor, the successful movant will no longer be forced to bear the legal costs incurred in the process of having the claim dismissed. The law does not effect successful summary judgment motions, however it is applicable to cross-claims and counterclaims. This new law will heighten the standard for pleading claims. It should help reduce the number of frivolous claims and hopefully will force plaintiffs to more specifically set out the basis for a lawsuit. By: Roy Sparks We are now serving Tennessee, Georgia, Florida, Kentucky and South Carolina. Please contact Troy Hart to see how MIJS can help you meet your workers’ comp goals. Disclaimer 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 discuss the details of your claim.