TENNESSEEWORKERS’COMPENSATIONUPDATEMAJOR CHANGES TO THE LAW

On May 21, 2011, the legislature passedthe most extensive statutory reform since2004. Although all of the concerns raisedhave not been fully addressed, thesestatutory changes to the TennesseeWorkers’ Compensation Law addresssome of the concerns of the employersand carriers. The new legislation focuseson four major areas: 1) future medicalbenefits, 2) communication with doctors,3) gradual injuries and 4) causation.

1. SETTLEMENT OFFUTURE MEDICALBENEFITS

In the past, the statute required parties toleave future medical benefits open for atleast three years for injuries to scheduledmembers, or to the body as a whole, witha statutory value of 200 weeks or more.The exception to the three-yearrequirement was when the injury was to ascheduled member with a statutory valueof 199 weeks or less, or on a doubtful anddisputed basis. The new law eliminatesthe three-year open medical benefitsprovision. Tenn. Code Ann. §50-6-206(a)(2) now permits the closing of futuremedical benefits immediately in mostcases. The only prohibition is in a casewhere an employee suffers a permanenttotal disability. There are otherwise norestrictions against closing futuremedical benefits, or in allocating an

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July 2011 – Issue 22 www.willis.com

additional payment to the injured employeein exchange for the agreement to waive theright to future medical treatment.

Prior to the revised Act, parties could onlysettle doubtful and disputed cases for amaximum lump sum payment of 50 times thestatutory minimum compensation rate. Thisceiling has been removed and now the partiescan settle disputed claims in full for anyagreed upon amount.

2. COMMUNICATIONWITH DOCTORS

The revised statute makes it easier foremployers, carriers and their representativesto communicate with authorized doctors, asTenn. Code Ann. §50-6-204 has been revisedin several sections to address the issues thatarose out of the Overstreet v. TRW

Commercial Steering Division, 256 S.W.3d 626

(Tenn. 2008) case.

The new provisions almost return the state ofthe law to the pre-2008 amendments. In2008, the legislature codified the Overstreet

decision and placed significant limitations onemployers, carriers and their representativesspeaking with authorized physicians. Suchparties were not allowed to communicatewith an authorized physician without first

This issue of You Should Know isone in a series of brief articlesdesigned to keep our clientsabreast of significant breakingnews in the claim and loss controlareas that could affect theiroperations or exposures.Additional information about thisand other topics can be obtainedfrom your Regional StrategicOutcomes Practice Associate.

obtaining a Department of Labor-approvedwritten authorization from the employee. If theemployer or carrier communicated with thephysician in writing, a copy of the writtendocument was to be provided to the injuredemployee or the employee’s attorney. If thecommunication between the employer or carrierand the physician was verbal, the law set forthspecific requirements for notifying the employeeor the employee’s attorney of the substance of theconversation. Under the new version of Tenn.Code Ann. §50-6-204, employers, carriers andtheir representatives may once againcommunicate with authorized physicians. Theinjured employee must first sign a Department ofLabor-approved medical authorization.

3. LIMITATION ON WHAT CONSTITUTESCOMPENSABLE INJURY

Through an amendment to the definition of“injury,” the new legislation significantly limitsthe scope of what constitutes a compensableinjury, especially gradual injuries. Tenn. CodeAnn. §50-6-102(12) previously stated:

“‘Injury’ and ‘personal injury’ mean an injury byaccident arising out of and in the course ofemployment that causes either disablement ordeath of the employee and shall includeoccupational diseases arising out of and in thecourse of employment that cause eitherdisablement or death of the employee and shallinclude a mental injury arising out of and in thecourse of employment.”

This section of the statute has been significantlyrevised and now states:

“‘Injury’ and ‘personal injury’ means an injury by accident arising out of and in the course ofemployment that causes either disablement ordeath of the employee. ‘Injury’ and ‘personalinjury’ shall not include a disease in any form,except when it arises out of and in the course andscope of employment. ‘Injury’ and ‘personalinjury’ include a mental injury arising out of andin the course of employment. An injury is‘accidental’ only if it is caused by a specific

incident (or incidents) arising out of and inthe course of employment and is identifiableby time and place of occurrence.

“Cumulative trauma conditions, hearing loss,carpal tunnel syndrome, and all otherrepetitive motion conditions shall not beconsidered an ‘injury’ or ‘personal injury’unless such conditions arose primarily out ofand in the course and scope of employment.”

Thus, the new statute narrows the definitionof “injury” to “a specific incident or incidentsarising out of and in the course ofemployment, and is identifiable by time andplace of occurrence.” The revised statute alsoplaces significant limitations on thecompensability of cumulative traumaconditions and repetitive or gradual injuries.It now provides that “cumulative traumaconditions, hearing loss, carpal tunnelsyndrome, and all other repetitive motionconditions” are no longer compensableinjuries in Tennessee unless these conditionsarose primarily out of and in the course ofemployment. This is the legislature’s firstattempt at limiting the scope of compensablegradual injuries.

4. CAUSATION TO BEDETERMINED BYAUTHORIZED TREATINGPHYSICIAN

The revised statute now provides that theauthorized treating physician’s opinion oncausation is presumed to be correct. Tenn.Code Ann. §50-6-102(12) has been amendedto include the following language, which waspreviously excluded from the statute:

“The opinion of the physician selected by theemployee from the employer’s designatedpanel of physicians pursuant to §50-6-204(a)(4) (A), (B) shall be presumed correct on theissue of causation and shall only be defeatedby a preponderance of the evidence to thecontrary.”

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Considering the new limitations on gradual injuries, the authorized physician’s opinion oncausation is paramount.

CONTACT

For additional information contact your Willis Client Advocate® or:

Barry LaytonArea Practice Leader, Atlantic RegionStrategic Outcomes Practice +1 615 872 3251barry.layton@willis.com

For information on other claim and loss prevention issues or to read prior editions of YouShould Know, please visit our site on willis.com.

Contributing author: Terry L Hill is a workers’ compensation defense attorney at the

law firm of Manier & Herod Nashville, TN 615 244 0030/www.manierherod.com

The observations, comments and suggestions we have made in this publication are advisory and are not

intended nor should they be taken as legal advice. Please contact your own legal adviser for an analysis of

your specific facts and circumstances.

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