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. 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. 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. 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. 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. 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:
WTH@MIJS.com
Online
www.mijs.com
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.