TN WORKERS’ COMP CHRONICLE May 2011

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

TN WORKERS’ COMP CHRONICLE May 2011

TN Workers’ Comp Chronicle
May 2011
Inside This
Issue:
• Reform Arrives
• MIJS
Successfully
Sues DOL…
Again!
• Case Law
Review
• Due Process
Update
• About MIJS
Moore, Ingram, Johnson & Steele LLP (865) 692-9039
Tennessee’s Comp System On the Verge of Reform
Repetitive Motion Claims Limited
In addition to the “specific incident”
language, SB 932 also eliminates certain
cumulative trauma claims. With a few
exceptions, hearing loss claims and carpal
tunnel syndrome claims will not be
considered compensable “unless the
disease exists and arose primarily out of
and in the course of employment… and
did not result primarily from a cause
outside of the employment…” This
sensible change will reduce claims that
arise mostly from pre-existing or age-
related conditions.
Closing Future Medicals
Another aspect of the proposed legislation
is the removal of the arbitrary 3-year time
limit for closing future medicals. Under
current Tennessee law, future medical
benefits for arm, leg or body as a whole
claims may be immediately closed only in
“doubtful and disputed” cases. The new
change will make it easier to fully resolve
claims, while making Medicare set-aside
agreements more prevalent in Tennessee.
Overstreet Requirements
Finally, SB 932 resets the medical
communications restrictions first created
by the 2008 Supreme Court case and
amended by legislation in 2009. Under the
new legislation, employers and adjusters
will enjoy increased access to authorized
treating physicians. These are welcome
changes. The convoluted nature of
Tennessee’s present system delays
resolution and encourages litigation. The
legislation is schedule for a floor vote
soon and MIJS will keep you updated.
By: Gregory H. Fuller
The Tennessee Workers’ Compensation
Advisory Council recently voted 5 to 1 to
recommend passage of employer-friendly
legislation. The bill, SB 932/HB 1503, is
endorsed by the Tennessee Chamber of
Commerce & Industry. According to
Chamber spokesman Bradley Jackson, the
legislation is intended to correct
Tennessee’s overly-complicated system.
The bill is a prelude to more
comprehensive reform to be developed
over the summer and advanced in next
year’s session.
In the meantime, Senate Majority Leader
Mark Norris of Collierville and
Representative Jimmy Eldridge of
Jackson, have spearhead three substantial
revisions to the current law.
“Injury” Redefined
The most sweeping change addresses the
statutory definition of injury. Currently,
T.C.A. § 50-6-102(12) defines “injury” as
“an injury by accident arising out of and in
the course of employment that causes
either disablement or death of the
employee.”
The reform bill inserts the following
language, “An injury, including a mental
injury, is ‘accidental’ only if it is caused
by a specific incident and is identifiable
by time and place of occurrence.”
TN Workers Comp Chronicle Page 2 of 4
MIJS recently utilized the
Uniform Administrative
Procedures Act to reverse a
DOL order requiring an
employer to place a specific
physician on a panel.
Following its successful constitutional
challenge, MIJS recently forced the
DOL to rescind an unlawful order to
include a specific physician on a panel.
On January 26, 2011 a Request for
Assistance was filed with the Tennessee
Department of Labor seeking medical
benefits. The employee alleged an injury
to her lower back and her authorized
treating physician referred the employee
to a specific neurosurgeon.
On March 16, 2011, the Department of
Labor issued an Order for Medical
Benefits requiring the employer to
provide a panel of neurosurgeons to
include the specific neurosurgeon. A
timely Request for Administrative
review was filed on behalf of the
employer.
Administrative Review
During the administrative review
informal teleconference MIJS argued
that a Specialist for the Department of
Labor did not have the statutory
authority to require the employer to
provide a panel of physicians to include
a specific physician. The Department’s
position at the time was that T.C.A. §
50-6-238 provided authority to for a
specialist to issue an order for an
“appropriate” panel. To this position
MIJS argued that an appropriate panel
was defined under T.C.A. § 50-6-204,
which states in relevant part “the
employer shall designate” a group of
three or more reputable physicians.
Despite this statutory argument the
Administrator’s Designee issued an
Order affirming the specialist’s order on
April 8, 2011.
Petition for Judicial Review
After receiving the April 8, 2011 order
MIJS discussed the options with the
carrier, at which time we decided to file
a Petition for Judicial Review of an
Administrative Agency’s Order in the
Chancery Court for Davidson County.
Shortly thereafter, MIJS filed a Motion
MIJS Wins Another Victory Against the Department of Labor
for Stay of the order and requested an
expedited hearing. This prompted a
call from the Attorney General’s
office to discuss the petition and
motion.
Subsequent to the conversation with
the Attorney General’s office, MIJS
received a call from the Department of
Labor Specialist that issued the
original order for benefits. We
discussed the issues with the order and
specifically whether the specialist had
the authority to require an employer to
place a specific physician on a panel.
Modified Order
On May 9, 2011, the Department of
Labor issued a Modified Order for
Medical Benefits. The Department
wrote that after some deliberations, it
determined that the Order for Medical
Benefits needed to be modified to
exclude the requirement of that a
specific provider be included on the
panel. A new panel of three
neurosurgeons selected by our client
was issued.
Holding the Department Accountable
This unprecedented reversal is a
decisive victory for employers and
carriers. It demonstrates that
Department orders can be successfully
challenged prior to a BRC via the
Uniform Administrative Procedures
Act. But we’re not done yet. We have
seen the Department order specific
providers be placed on a panel on
numerous occasions.
It is our position that this excessive act
is capable of repetition and that the
Department is trying to evade review
from the Chancery Court by
rescinding its order. Accordingly, the
issue needs to be addressed by the
Chancery Court and the case will
proceed.
By: Daniel Starnes
TN Workers’ Comp ChroniclePage 3 of 4
Refusal to Return to Work
A recent case capped an award for an
employee who refused to return to
work because she did not believe that
she could perform her job duties.
Following a work-related slip and
fall injury, a timeshare sales
representative eventually was given
permanent restrictions by her
physiatrist.
The ATP opined that the employee’s
job duties complied with the
restrictions he gave. Employer then
attempted to schedule employee’s
return to work, which employee
declined under the subjective belief
that she would be unable to perform
her job due to pain.
The appeals panel reversed the trial
court’s ruling and found that an
employee’s subjective belief alone of
being unable to perform their duties
is insufficient. In order to decline a
reasonable offer to return to work,
without some other evidence
supporting employee’s decision,
particularly medical advice or
opinion.
The panel emphasized the
employee’s failure to even attempt to
make a return to work, in that had
employee made an attempt to return
but ultimately was prevented from
performing her duties due to pain, as
corroborated by her physician, then a
different result might have been
appropriate. However, since
employee did not make such an
attempt, the court stated “any
conclusion about what might have
happened is mere speculation.”
Blair v. Wyndham Vacation Ownership,
Inc.
Recent Tennessee Case Law Review
Layoffs & Meaningful Return to Work
Claimant worked for an employer who
routinely laid-off employees at least two
times per year for short periods of time.
Layoffs were assigned in order of
seniority, with the lowest level
employees being laid off first. During
layoff periods employees were not paid
and did not receive any benefits.
Given the uncertain duration of the
layoff, the Claimant chose to retire
rather then wait to see if he would be
brought back after the layoff. After
retiring the Claimant continued to
pursue a claim for second injury as well
as reconsideration of a previous injury.
The Claimant said that he was entitled to
reconsideration due to the fact that he
had not had a meaningful return to
work.
The Supreme Court of Tennessee held
that the Claimant had not had a
meaningful return to work, that he could
seek reconsideration of his initial injury
and was not subject to the lower
statutory caps. Specifically, the Court
held that the Claimant’s employment
ended when he was laid off not when he
retired.
The Court provided a number of factors
to be used in determining whether a
layoff is a loss of employment and,
therefore, not a meaningful return of
work: (1.) whether the layoffs are a
customary or expected part of the
employee’s position and, if so, whether
the specific layoff in question falls
within the pattern of previous layoffs in
the position;
(2.) whether the employee expected
or should have expected, at the time
of the layoff, to be recalled to work;
and (3.) whether the employee
received pay or benefits while laid
off. These factors should be kept in
mind when determining whether a
layoff breaks the cap. Nichols v. Jack
Cooper Transport Co.
Pre-existing Mental Issues
In Transport Service LLC v. Donald
Allen, the employee suffered a
shoulder injury when he fell at work.
This injury was not disputed.
However, he also claimed to suffer a
mental injury due to depression and
anxiety suffered subsequent to the
injury. This, he said, was due to the
fact that, when he was allowed to
return to work on a light-duty basis,
he was harassed and taunted by his
fellow employees.
The trial court found this to be a
compensable mental injury, after
hearing testimony of two mental
health experts, one of whom went
only on what Mr. Allen reported to
him, even though Mr. Allen had an
extensive mental health history prior
to his shoulder injury. However, the
appellate court reversed when it
reviewed the record and discovered
that Mr. Allen had been treated for
depression and anxiety prior to the
injury, the same mental conditions he
was claiming were caused by the
shoulder injury. Why the trial court
disregarded this fact is unclear.
This case shows why it is important
to aggressively obtain all prior
medical records, especially in mental
claims.
TN Workers Comp Chronicle Page 4 of 4
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.
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 eight
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
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 a
new office Louisville, KY. MIJS also operates an
office in Nashville, TN and serves its clients in
Florida as well. Please contact Troy Hart to see
how MIJS can help you meet your workers’
comp goals.
The Department of Labor will host
its annual educational conference on
June 14 and 15 in Nashville. MIJS
will be attending and encourages its
clients to participate in order to stay
up to date on developments in
Tennessee.
This year’s topics include:
-Social Networking in Comp Claims
-Utilization Review Process
-Aging and Degenerative Conditions
-Judicial Review of DOL Orders
Department of Labor Educational Conference
The educational conference is a great
opportunity to get to know the
vendors, administrators and medical
providers who shape Tennessee’s
comp process. It is also a chance to
reconnect with the MIJS, get some
CEU credits and experience Music
City’s unique culture.
It’s not too late to register. The cost
is $375.00 per registrant. For more
information http://www.tn.gov/labor-
wfd/wc_conf_register2011.pdf
As you may know, MIJS recently
won a ground-breaking constitutional
challenge to the Request for
Assistance process. The Davidson
County Chancery Court struck down
T.C.A. 50-6-238(a)(2) as a violation
of procedural due process because
the statute provides no independent
judicial review of the Department’s
orders for TTD benefits.
Due Process Update
The Department appealed the Court’s
decision and oral argument has been
set for June 28, 2011, in the Court of
Appeals. As the discussed above,
MIJS’s challenge has paved the way
for more successful challenges to
Tennessee’s comp system. If you’ve
been wronged by the Request for
Assistance process, call MIJS today
to discuss your options. To view the
decision, visit
http://www.tennesseeattorneysmemo.
com/documents/35-TAM-49-35.pdf

Recommended

TN WORKERS’ COMP CHRONICLE January 2013 by
TN WORKERS’ COMP CHRONICLE January 2013TN WORKERS’ COMP CHRONICLE January 2013
TN WORKERS’ COMP CHRONICLE January 2013Moore Ingram Johnson & Steele, LLP
2.6K views4 slides
TN WORKERS’ COMP CHRONICLE December 2009 by
TN WORKERS’ COMP CHRONICLE December 2009TN WORKERS’ COMP CHRONICLE December 2009
TN WORKERS’ COMP CHRONICLE December 2009Moore Ingram Johnson & Steele, LLP
2.6K views4 slides
TN WORKERS’ COMP CHRONICLE June 2010 by
TN WORKERS’ COMP CHRONICLE June 2010TN WORKERS’ COMP CHRONICLE June 2010
TN WORKERS’ COMP CHRONICLE June 2010Moore Ingram Johnson & Steele, LLP
2.5K views5 slides
TN WORKERS’ COMP CHRONICLE April 2009 by
TN WORKERS’ COMP CHRONICLE April 2009TN WORKERS’ COMP CHRONICLE April 2009
TN WORKERS’ COMP CHRONICLE April 2009Moore Ingram Johnson & Steele, LLP
2.7K views4 slides
TN WORKERS’ COMP CHRONICLE July 2009 by
TN WORKERS’ COMP CHRONICLE July 2009TN WORKERS’ COMP CHRONICLE July 2009
TN WORKERS’ COMP CHRONICLE July 2009Moore Ingram Johnson & Steele, LLP
2.5K views4 slides
TN WORKERS’ COMP CHRONICLE May 2012 by
TN WORKERS’ COMP CHRONICLE May 2012TN WORKERS’ COMP CHRONICLE May 2012
TN WORKERS’ COMP CHRONICLE May 2012Moore Ingram Johnson & Steele, LLP
2.5K views3 slides

More Related Content

What's hot

Medicare – Set Aside Arrangements A Combined Effort by
Medicare – Set Aside Arrangements A Combined EffortMedicare – Set Aside Arrangements A Combined Effort
Medicare – Set Aside Arrangements A Combined EffortMoore Ingram Johnson & Steele, LLP
2.6K views18 slides
Workers' Compensation Laws: Georgia by
Workers' Compensation Laws: GeorgiaWorkers' Compensation Laws: Georgia
Workers' Compensation Laws: GeorgiaMoore Ingram Johnson & Steele, LLP
2.9K views8 slides
Spotting Employment Liability Exposure by
Spotting Employment Liability ExposureSpotting Employment Liability Exposure
Spotting Employment Liability ExposureMoore Ingram Johnson & Steele, LLP
2.7K views12 slides
New_Whistleblowing_Protections_for_Employees_of_Government_Contractors by
New_Whistleblowing_Protections_for_Employees_of_Government_ContractorsNew_Whistleblowing_Protections_for_Employees_of_Government_Contractors
New_Whistleblowing_Protections_for_Employees_of_Government_ContractorsParsons Behle & Latimer
390 views30 slides
Wage and Hour Disputes and Class Action Claims by
Wage and Hour Disputes and Class Action ClaimsWage and Hour Disputes and Class Action Claims
Wage and Hour Disputes and Class Action ClaimsParsons Behle & Latimer
762 views21 slides
The Great Trade Off New York State Workers Compensation: An Overview by
The Great Trade Off New York State Workers Compensation: An OverviewThe Great Trade Off New York State Workers Compensation: An Overview
The Great Trade Off New York State Workers Compensation: An OverviewMarkhoff & Mittman, PC
746 views28 slides

What's hot(20)

New_Whistleblowing_Protections_for_Employees_of_Government_Contractors by Parsons Behle & Latimer
New_Whistleblowing_Protections_for_Employees_of_Government_ContractorsNew_Whistleblowing_Protections_for_Employees_of_Government_Contractors
New_Whistleblowing_Protections_for_Employees_of_Government_Contractors
The Great Trade Off New York State Workers Compensation: An Overview by Markhoff & Mittman, PC
The Great Trade Off New York State Workers Compensation: An OverviewThe Great Trade Off New York State Workers Compensation: An Overview
The Great Trade Off New York State Workers Compensation: An Overview
12 Ways Employers Violate FMLA [Data Driven] by Richard Celler
12 Ways Employers Violate FMLA [Data Driven]12 Ways Employers Violate FMLA [Data Driven]
12 Ways Employers Violate FMLA [Data Driven]
Richard Celler578 views
Oregon Employment Law Update May 2012 (00259821) by TEllaRussell
Oregon Employment Law Update May 2012 (00259821)Oregon Employment Law Update May 2012 (00259821)
Oregon Employment Law Update May 2012 (00259821)
TEllaRussell553 views
Employers_on_the_Edge_Strategies_for_Dealing_with_the_Affordable_Care_Act by Parsons Behle & Latimer
Employers_on_the_Edge_Strategies_for_Dealing_with_the_Affordable_Care_ActEmployers_on_the_Edge_Strategies_for_Dealing_with_the_Affordable_Care_Act
Employers_on_the_Edge_Strategies_for_Dealing_with_the_Affordable_Care_Act
Why You Should Team Up and Make Friends: Your Professional Responsibilities W... by Parsons Behle & Latimer
Why You Should Team Up and Make Friends: Your Professional Responsibilities W...Why You Should Team Up and Make Friends: Your Professional Responsibilities W...
Why You Should Team Up and Make Friends: Your Professional Responsibilities W...
White Paper: Complying With Regulations Regarding Temporary Workers by ss
White Paper: Complying With Regulations Regarding Temporary WorkersWhite Paper: Complying With Regulations Regarding Temporary Workers
White Paper: Complying With Regulations Regarding Temporary Workers
ss502 views
From Hiring to Firing by Rudner Law
From Hiring to FiringFrom Hiring to Firing
From Hiring to Firing
Rudner Law572 views
New York Workers' Compensation by Barry Simon
New York Workers' CompensationNew York Workers' Compensation
New York Workers' Compensation
Barry Simon708 views
2008 Hot Topics in Labor & Employment Law by ptcollins
2008 Hot Topics in Labor & Employment Law2008 Hot Topics in Labor & Employment Law
2008 Hot Topics in Labor & Employment Law
ptcollins1.3K views

Viewers also liked

SAUPO Presentation April 2016 by
SAUPO Presentation April 2016SAUPO Presentation April 2016
SAUPO Presentation April 2016Moore Ingram Johnson & Steele, LLP
2.7K views8 slides
Marietta Daily Journal – Home to the Best by
Marietta Daily Journal – Home to the BestMarietta Daily Journal – Home to the Best
Marietta Daily Journal – Home to the BestMoore Ingram Johnson & Steele, LLP
2.7K views1 slide
Due Diligence in Cross-border Mergers & Acquisitions in Integrated Global Com... by
Due Diligence in Cross-border Mergers & Acquisitions in Integrated Global Com...Due Diligence in Cross-border Mergers & Acquisitions in Integrated Global Com...
Due Diligence in Cross-border Mergers & Acquisitions in Integrated Global Com...Moore Ingram Johnson & Steele, LLP
2.7K views35 slides
Outside the Perimeter by
Outside the PerimeterOutside the Perimeter
Outside the PerimeterMoore Ingram Johnson & Steele, LLP
2.6K views7 slides
Captive Resources Presentation – June 13, 2012 by
Captive Resources Presentation – June 13, 2012Captive Resources Presentation – June 13, 2012
Captive Resources Presentation – June 13, 2012Moore Ingram Johnson & Steele, LLP
1.4K views70 slides
Abusive Tax Shelters Again on the IRS “Dirty Dozen” List of Tax Scams for the... by
Abusive Tax Shelters Again on the IRS “Dirty Dozen” List of Tax Scams for the...Abusive Tax Shelters Again on the IRS “Dirty Dozen” List of Tax Scams for the...
Abusive Tax Shelters Again on the IRS “Dirty Dozen” List of Tax Scams for the...Moore Ingram Johnson & Steele, LLP
3.6K views2 slides

Similar to TN WORKERS’ COMP CHRONICLE May 2011

Human Rights by
Human RightsHuman Rights
Human RightsRudner Law
823 views28 slides
1.  Potter v. New Brunswick Legal Aid Services Commission, 201.docx by
1.  Potter v. New Brunswick Legal Aid Services Commission, 201.docx1.  Potter v. New Brunswick Legal Aid Services Commission, 201.docx
1.  Potter v. New Brunswick Legal Aid Services Commission, 201.docxpaynetawnya
3 views22 slides
First 30 Days by
First 30 DaysFirst 30 Days
First 30 Dayssburliss
376 views37 slides
DatabaseRecord 1RECENT DEVELOPMENTS IN WORKERS COMP.docx by
DatabaseRecord 1RECENT DEVELOPMENTS IN WORKERS COMP.docxDatabaseRecord 1RECENT DEVELOPMENTS IN WORKERS COMP.docx
DatabaseRecord 1RECENT DEVELOPMENTS IN WORKERS COMP.docxJack632244
1 view183 slides
Recent Wage and Hour Developments Under the Fair Labor Standards Act by
Recent Wage and Hour Developments Under the Fair Labor Standards ActRecent Wage and Hour Developments Under the Fair Labor Standards Act
Recent Wage and Hour Developments Under the Fair Labor Standards ActMitchQuick
398 views12 slides
Memorandum is noncompete clause enforceable.docx by
Memorandum is noncompete clause enforceable.docxMemorandum is noncompete clause enforceable.docx
Memorandum is noncompete clause enforceable.docxstirlingvwriters
3 views3 slides

Similar to TN WORKERS’ COMP CHRONICLE May 2011(20)

Human Rights by Rudner Law
Human RightsHuman Rights
Human Rights
Rudner Law823 views
1.  Potter v. New Brunswick Legal Aid Services Commission, 201.docx by paynetawnya
1.  Potter v. New Brunswick Legal Aid Services Commission, 201.docx1.  Potter v. New Brunswick Legal Aid Services Commission, 201.docx
1.  Potter v. New Brunswick Legal Aid Services Commission, 201.docx
paynetawnya3 views
First 30 Days by sburliss
First 30 DaysFirst 30 Days
First 30 Days
sburliss376 views
DatabaseRecord 1RECENT DEVELOPMENTS IN WORKERS COMP.docx by Jack632244
DatabaseRecord 1RECENT DEVELOPMENTS IN WORKERS COMP.docxDatabaseRecord 1RECENT DEVELOPMENTS IN WORKERS COMP.docx
DatabaseRecord 1RECENT DEVELOPMENTS IN WORKERS COMP.docx
Jack6322441 view
Recent Wage and Hour Developments Under the Fair Labor Standards Act by MitchQuick
Recent Wage and Hour Developments Under the Fair Labor Standards ActRecent Wage and Hour Developments Under the Fair Labor Standards Act
Recent Wage and Hour Developments Under the Fair Labor Standards Act
MitchQuick398 views
Memorandum is noncompete clause enforceable.docx by stirlingvwriters
Memorandum is noncompete clause enforceable.docxMemorandum is noncompete clause enforceable.docx
Memorandum is noncompete clause enforceable.docx
Workers' Compensation Case Law by CareyLawFirm
Workers' Compensation Case LawWorkers' Compensation Case Law
Workers' Compensation Case Law
CareyLawFirm2.6K views
Sacks and Zolonz Blog Entries 10-2010 by SacksandZolonz
Sacks and Zolonz Blog Entries 10-2010Sacks and Zolonz Blog Entries 10-2010
Sacks and Zolonz Blog Entries 10-2010
SacksandZolonz771 views
2013 Best Best & Krieger Labor & Employment Update: Wage & Hour Case Studies by Best Best and Krieger LLP
2013 Best Best & Krieger Labor & Employment Update: Wage & Hour Case Studies2013 Best Best & Krieger Labor & Employment Update: Wage & Hour Case Studies
2013 Best Best & Krieger Labor & Employment Update: Wage & Hour Case Studies
CHAPTER 20 Employment Law and Worker ProtectionWashington DC.docx by tiffanyd4
CHAPTER 20 Employment Law and Worker ProtectionWashington DC.docxCHAPTER 20 Employment Law and Worker ProtectionWashington DC.docx
CHAPTER 20 Employment Law and Worker ProtectionWashington DC.docx
tiffanyd44 views
Sacks & Zolonz Blog entries 09-2010 by SacksandZolonz
Sacks & Zolonz Blog entries 09-2010Sacks & Zolonz Blog entries 09-2010
Sacks & Zolonz Blog entries 09-2010
SacksandZolonz243 views
Duty to Inquire and CTE Discrimination in Alberta Human Rights.pdf by arifulislam946965
Duty to Inquire and CTE Discrimination in Alberta Human Rights.pdfDuty to Inquire and CTE Discrimination in Alberta Human Rights.pdf
Duty to Inquire and CTE Discrimination in Alberta Human Rights.pdf
Employment Law Update by Rudner Law
Employment Law UpdateEmployment Law Update
Employment Law Update
Rudner Law852 views
Workers' Compensation: What You Need to Know by Page-1
Workers' Compensation: What You Need to KnowWorkers' Compensation: What You Need to Know
Workers' Compensation: What You Need to Know
Page-1250 views

More from Moore Ingram Johnson & Steele, LLP

ICJE Memo 2.docx by
ICJE Memo 2.docxICJE Memo 2.docx
ICJE Memo 2.docxMoore Ingram Johnson & Steele, LLP
132 views10 slides
Injunctions and Restraining Orders.pptx by
Injunctions and Restraining Orders.pptxInjunctions and Restraining Orders.pptx
Injunctions and Restraining Orders.pptxMoore Ingram Johnson & Steele, LLP
131 views20 slides
Case update by
Case updateCase update
Case updateMoore Ingram Johnson & Steele, LLP
2.6K views152 slides
Mijs captive tax opinion 2018 (redacted) by
Mijs captive tax opinion   2018 (redacted)Mijs captive tax opinion   2018 (redacted)
Mijs captive tax opinion 2018 (redacted)Moore Ingram Johnson & Steele, LLP
634 views36 slides
Mijs captive tax opinion 2017 (redacted) by
Mijs captive tax opinion   2017 (redacted)Mijs captive tax opinion   2017 (redacted)
Mijs captive tax opinion 2017 (redacted)Moore Ingram Johnson & Steele, LLP
633 views35 slides
Mijs captive tax opinion 2019 (redacted) by
Mijs captive tax opinion   2019 (redacted)Mijs captive tax opinion   2019 (redacted)
Mijs captive tax opinion 2019 (redacted)Moore Ingram Johnson & Steele, LLP
638 views36 slides

More from Moore Ingram Johnson & Steele, LLP(20)

Recently uploaded

Public-Private Partnership for Infrastructure Procurement in Indonesia’s New ... by
Public-Private Partnership for Infrastructure Procurement in Indonesia’s New ...Public-Private Partnership for Infrastructure Procurement in Indonesia’s New ...
Public-Private Partnership for Infrastructure Procurement in Indonesia’s New ...AHRP Law Firm
6 views24 slides
2024 Kairos Capital Legal Fellow Listing.pdf by
2024 Kairos Capital Legal Fellow Listing.pdf2024 Kairos Capital Legal Fellow Listing.pdf
2024 Kairos Capital Legal Fellow Listing.pdfKairos Capital Legal Advisors,LLC
9 views1 slide
Navigating Divorce Law in Ontario: A Practical Guide by
Navigating Divorce Law in Ontario: A Practical GuideNavigating Divorce Law in Ontario: A Practical Guide
Navigating Divorce Law in Ontario: A Practical GuideBTL Law P.C.
7 views16 slides
Indonesia Green Taxonomy: Towards a More Sustainable Financial System by
Indonesia Green Taxonomy: Towards a More Sustainable Financial SystemIndonesia Green Taxonomy: Towards a More Sustainable Financial System
Indonesia Green Taxonomy: Towards a More Sustainable Financial SystemAHRP Law Firm
6 views10 slides
Atty. Yebra - Criminal Law - Case Doctrines 07292022.pdf by
Atty. Yebra - Criminal Law - Case Doctrines 07292022.pdfAtty. Yebra - Criminal Law - Case Doctrines 07292022.pdf
Atty. Yebra - Criminal Law - Case Doctrines 07292022.pdfJonalynBedking
6 views19 slides
Jamaica's Data Protection Act: Compliance required from the business community by
Jamaica's Data Protection Act: Compliance required from the business communityJamaica's Data Protection Act: Compliance required from the business community
Jamaica's Data Protection Act: Compliance required from the business communityEmerson Bryan
16 views13 slides

Recently uploaded(12)

Public-Private Partnership for Infrastructure Procurement in Indonesia’s New ... by AHRP Law Firm
Public-Private Partnership for Infrastructure Procurement in Indonesia’s New ...Public-Private Partnership for Infrastructure Procurement in Indonesia’s New ...
Public-Private Partnership for Infrastructure Procurement in Indonesia’s New ...
AHRP Law Firm 6 views
Navigating Divorce Law in Ontario: A Practical Guide by BTL Law P.C.
Navigating Divorce Law in Ontario: A Practical GuideNavigating Divorce Law in Ontario: A Practical Guide
Navigating Divorce Law in Ontario: A Practical Guide
BTL Law P.C.7 views
Indonesia Green Taxonomy: Towards a More Sustainable Financial System by AHRP Law Firm
Indonesia Green Taxonomy: Towards a More Sustainable Financial SystemIndonesia Green Taxonomy: Towards a More Sustainable Financial System
Indonesia Green Taxonomy: Towards a More Sustainable Financial System
AHRP Law Firm 6 views
Atty. Yebra - Criminal Law - Case Doctrines 07292022.pdf by JonalynBedking
Atty. Yebra - Criminal Law - Case Doctrines 07292022.pdfAtty. Yebra - Criminal Law - Case Doctrines 07292022.pdf
Atty. Yebra - Criminal Law - Case Doctrines 07292022.pdf
JonalynBedking6 views
Jamaica's Data Protection Act: Compliance required from the business community by Emerson Bryan
Jamaica's Data Protection Act: Compliance required from the business communityJamaica's Data Protection Act: Compliance required from the business community
Jamaica's Data Protection Act: Compliance required from the business community
Emerson Bryan16 views
Baromètre Women's Forum 2023 by Ipsos France
Baromètre Women's Forum 2023Baromètre Women's Forum 2023
Baromètre Women's Forum 2023
Ipsos France243 views
Women in Law and Politics Journal.pdf Danielle Mikaelian by DanielleMikaelian
Women in Law and Politics Journal.pdf Danielle MikaelianWomen in Law and Politics Journal.pdf Danielle Mikaelian
Women in Law and Politics Journal.pdf Danielle Mikaelian
Jackpocket v. Lottomatrix fee petition order.pdf by Mike Keyes
Jackpocket v. Lottomatrix fee petition order.pdfJackpocket v. Lottomatrix fee petition order.pdf
Jackpocket v. Lottomatrix fee petition order.pdf
Mike Keyes17 views
Sangyun Lee, 'Criminal Enforcement of the MRFTA against ASBP in Korea' (Kyoto... by Sangyun Lee
Sangyun Lee, 'Criminal Enforcement of the MRFTA against ASBP in Korea' (Kyoto...Sangyun Lee, 'Criminal Enforcement of the MRFTA against ASBP in Korea' (Kyoto...
Sangyun Lee, 'Criminal Enforcement of the MRFTA against ASBP in Korea' (Kyoto...
Sangyun Lee7 views
Religious Freedom, Registration Issues and the Colonial Legacy of State Recog... by Cometan
Religious Freedom, Registration Issues and the Colonial Legacy of State Recog...Religious Freedom, Registration Issues and the Colonial Legacy of State Recog...
Religious Freedom, Registration Issues and the Colonial Legacy of State Recog...
Cometan7 views

TN WORKERS’ COMP CHRONICLE May 2011

  • 1. TN Workers’ Comp Chronicle May 2011 Inside This Issue: • Reform Arrives • MIJS Successfully Sues DOL… Again! • Case Law Review • Due Process Update • About MIJS Moore, Ingram, Johnson & Steele LLP (865) 692-9039 Tennessee’s Comp System On the Verge of Reform Repetitive Motion Claims Limited In addition to the “specific incident” language, SB 932 also eliminates certain cumulative trauma claims. With a few exceptions, hearing loss claims and carpal tunnel syndrome claims will not be considered compensable “unless the disease exists and arose primarily out of and in the course of employment… and did not result primarily from a cause outside of the employment…” This sensible change will reduce claims that arise mostly from pre-existing or age- related conditions. Closing Future Medicals Another aspect of the proposed legislation is the removal of the arbitrary 3-year time limit for closing future medicals. Under current Tennessee law, future medical benefits for arm, leg or body as a whole claims may be immediately closed only in “doubtful and disputed” cases. The new change will make it easier to fully resolve claims, while making Medicare set-aside agreements more prevalent in Tennessee. Overstreet Requirements Finally, SB 932 resets the medical communications restrictions first created by the 2008 Supreme Court case and amended by legislation in 2009. Under the new legislation, employers and adjusters will enjoy increased access to authorized treating physicians. These are welcome changes. The convoluted nature of Tennessee’s present system delays resolution and encourages litigation. The legislation is schedule for a floor vote soon and MIJS will keep you updated. By: Gregory H. Fuller The Tennessee Workers’ Compensation Advisory Council recently voted 5 to 1 to recommend passage of employer-friendly legislation. The bill, SB 932/HB 1503, is endorsed by the Tennessee Chamber of Commerce & Industry. According to Chamber spokesman Bradley Jackson, the legislation is intended to correct Tennessee’s overly-complicated system. The bill is a prelude to more comprehensive reform to be developed over the summer and advanced in next year’s session. In the meantime, Senate Majority Leader Mark Norris of Collierville and Representative Jimmy Eldridge of Jackson, have spearhead three substantial revisions to the current law. “Injury” Redefined The most sweeping change addresses the statutory definition of injury. Currently, T.C.A. § 50-6-102(12) defines “injury” as “an injury by accident arising out of and in the course of employment that causes either disablement or death of the employee.” The reform bill inserts the following language, “An injury, including a mental injury, is ‘accidental’ only if it is caused by a specific incident and is identifiable by time and place of occurrence.”
  • 2. TN Workers Comp Chronicle Page 2 of 4 MIJS recently utilized the Uniform Administrative Procedures Act to reverse a DOL order requiring an employer to place a specific physician on a panel. Following its successful constitutional challenge, MIJS recently forced the DOL to rescind an unlawful order to include a specific physician on a panel. On January 26, 2011 a Request for Assistance was filed with the Tennessee Department of Labor seeking medical benefits. The employee alleged an injury to her lower back and her authorized treating physician referred the employee to a specific neurosurgeon. On March 16, 2011, the Department of Labor issued an Order for Medical Benefits requiring the employer to provide a panel of neurosurgeons to include the specific neurosurgeon. A timely Request for Administrative review was filed on behalf of the employer. Administrative Review During the administrative review informal teleconference MIJS argued that a Specialist for the Department of Labor did not have the statutory authority to require the employer to provide a panel of physicians to include a specific physician. The Department’s position at the time was that T.C.A. § 50-6-238 provided authority to for a specialist to issue an order for an “appropriate” panel. To this position MIJS argued that an appropriate panel was defined under T.C.A. § 50-6-204, which states in relevant part “the employer shall designate” a group of three or more reputable physicians. Despite this statutory argument the Administrator’s Designee issued an Order affirming the specialist’s order on April 8, 2011. Petition for Judicial Review After receiving the April 8, 2011 order MIJS discussed the options with the carrier, at which time we decided to file a Petition for Judicial Review of an Administrative Agency’s Order in the Chancery Court for Davidson County. Shortly thereafter, MIJS filed a Motion MIJS Wins Another Victory Against the Department of Labor for Stay of the order and requested an expedited hearing. This prompted a call from the Attorney General’s office to discuss the petition and motion. Subsequent to the conversation with the Attorney General’s office, MIJS received a call from the Department of Labor Specialist that issued the original order for benefits. We discussed the issues with the order and specifically whether the specialist had the authority to require an employer to place a specific physician on a panel. Modified Order On May 9, 2011, the Department of Labor issued a Modified Order for Medical Benefits. The Department wrote that after some deliberations, it determined that the Order for Medical Benefits needed to be modified to exclude the requirement of that a specific provider be included on the panel. A new panel of three neurosurgeons selected by our client was issued. Holding the Department Accountable This unprecedented reversal is a decisive victory for employers and carriers. It demonstrates that Department orders can be successfully challenged prior to a BRC via the Uniform Administrative Procedures Act. But we’re not done yet. We have seen the Department order specific providers be placed on a panel on numerous occasions. It is our position that this excessive act is capable of repetition and that the Department is trying to evade review from the Chancery Court by rescinding its order. Accordingly, the issue needs to be addressed by the Chancery Court and the case will proceed. By: Daniel Starnes
  • 3. TN Workers’ Comp ChroniclePage 3 of 4 Refusal to Return to Work A recent case capped an award for an employee who refused to return to work because she did not believe that she could perform her job duties. Following a work-related slip and fall injury, a timeshare sales representative eventually was given permanent restrictions by her physiatrist. The ATP opined that the employee’s job duties complied with the restrictions he gave. Employer then attempted to schedule employee’s return to work, which employee declined under the subjective belief that she would be unable to perform her job due to pain. The appeals panel reversed the trial court’s ruling and found that an employee’s subjective belief alone of being unable to perform their duties is insufficient. In order to decline a reasonable offer to return to work, without some other evidence supporting employee’s decision, particularly medical advice or opinion. The panel emphasized the employee’s failure to even attempt to make a return to work, in that had employee made an attempt to return but ultimately was prevented from performing her duties due to pain, as corroborated by her physician, then a different result might have been appropriate. However, since employee did not make such an attempt, the court stated “any conclusion about what might have happened is mere speculation.” Blair v. Wyndham Vacation Ownership, Inc. Recent Tennessee Case Law Review Layoffs & Meaningful Return to Work Claimant worked for an employer who routinely laid-off employees at least two times per year for short periods of time. Layoffs were assigned in order of seniority, with the lowest level employees being laid off first. During layoff periods employees were not paid and did not receive any benefits. Given the uncertain duration of the layoff, the Claimant chose to retire rather then wait to see if he would be brought back after the layoff. After retiring the Claimant continued to pursue a claim for second injury as well as reconsideration of a previous injury. The Claimant said that he was entitled to reconsideration due to the fact that he had not had a meaningful return to work. The Supreme Court of Tennessee held that the Claimant had not had a meaningful return to work, that he could seek reconsideration of his initial injury and was not subject to the lower statutory caps. Specifically, the Court held that the Claimant’s employment ended when he was laid off not when he retired. The Court provided a number of factors to be used in determining whether a layoff is a loss of employment and, therefore, not a meaningful return of work: (1.) whether the layoffs are a customary or expected part of the employee’s position and, if so, whether the specific layoff in question falls within the pattern of previous layoffs in the position; (2.) whether the employee expected or should have expected, at the time of the layoff, to be recalled to work; and (3.) whether the employee received pay or benefits while laid off. These factors should be kept in mind when determining whether a layoff breaks the cap. Nichols v. Jack Cooper Transport Co. Pre-existing Mental Issues In Transport Service LLC v. Donald Allen, the employee suffered a shoulder injury when he fell at work. This injury was not disputed. However, he also claimed to suffer a mental injury due to depression and anxiety suffered subsequent to the injury. This, he said, was due to the fact that, when he was allowed to return to work on a light-duty basis, he was harassed and taunted by his fellow employees. The trial court found this to be a compensable mental injury, after hearing testimony of two mental health experts, one of whom went only on what Mr. Allen reported to him, even though Mr. Allen had an extensive mental health history prior to his shoulder injury. However, the appellate court reversed when it reviewed the record and discovered that Mr. Allen had been treated for depression and anxiety prior to the injury, the same mental conditions he was claiming were caused by the shoulder injury. Why the trial court disregarded this fact is unclear. This case shows why it is important to aggressively obtain all prior medical records, especially in mental claims.
  • 4. TN Workers Comp Chronicle Page 4 of 4 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. 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 eight 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 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 a new office Louisville, KY. MIJS also operates an office in Nashville, TN and serves its clients in Florida as well. Please contact Troy Hart to see how MIJS can help you meet your workers’ comp goals. The Department of Labor will host its annual educational conference on June 14 and 15 in Nashville. MIJS will be attending and encourages its clients to participate in order to stay up to date on developments in Tennessee. This year’s topics include: -Social Networking in Comp Claims -Utilization Review Process -Aging and Degenerative Conditions -Judicial Review of DOL Orders Department of Labor Educational Conference The educational conference is a great opportunity to get to know the vendors, administrators and medical providers who shape Tennessee’s comp process. It is also a chance to reconnect with the MIJS, get some CEU credits and experience Music City’s unique culture. It’s not too late to register. The cost is $375.00 per registrant. For more information http://www.tn.gov/labor- wfd/wc_conf_register2011.pdf As you may know, MIJS recently won a ground-breaking constitutional challenge to the Request for Assistance process. The Davidson County Chancery Court struck down T.C.A. 50-6-238(a)(2) as a violation of procedural due process because the statute provides no independent judicial review of the Department’s orders for TTD benefits. Due Process Update The Department appealed the Court’s decision and oral argument has been set for June 28, 2011, in the Court of Appeals. As the discussed above, MIJS’s challenge has paved the way for more successful challenges to Tennessee’s comp system. If you’ve been wronged by the Request for Assistance process, call MIJS today to discuss your options. To view the decision, visit http://www.tennesseeattorneysmemo. com/documents/35-TAM-49-35.pdf