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Important Changes to the Tennessee Workers' Compensation Law-2009
July 14, 2009
Tennessee legislature makes changes to Tennessee's Workers' Compensation Law.
The Tennessee legislature has made several changes to the Tennessee Workers’ Compensation Law that we will summarize in this article. A complete, detailed review of this information and all workers’ compensation bills introduced in this legislative session can be found at www.legislature.state.tn.us.
Last month, Governor Phil Bredesen signed into law a bill known as the “Overstreet Bill,” which changes the rules regarding written and oral communications between an employer, insurance carrier, or attorney, and a plaintiff’s authorized treating physician in workers’ compensation claims. These new rules are summarized below.
Rights and Obligations of Employer, Employer’s Attorney, Insurance Carrier, Third Party Administrator, Case Manager, or Utilization Review Agent
If you are an employer, employer’s attorney, insurance carrier, third party administrator, case manager, or utilization review agent and you have obtained a proper medical authorization form (Form C-31) signed by the employee and provided it to the authorized medical provider:
Written Communications
- You may request medical records or reports from an authorized medical provider, but the request must be in writing and a copy of the request must be provided to the employee and the employee’s attorney at the same time that it is sent to the authorized medical provider
- All other written communications to an authorized medical provider are prohibited unless (i) the employee and employee’s attorney are copied as recipients, (ii) the employee and employee’s attorney are provided copies of any information sent to the authorized medical provider, and (iii) you provide any response from the authorized medical provider to the employee or employee’s attorney within 7 calendar days of your receipt.
Note: An individual medical authorization form is required, by statute, for each individual authorized medical provider. The Medical Waiver and Consent form (C-31) is prescribed by the Commissioner and is available on the Tennessee Department of Labor & Workforce Development, Workers’ Compensation Division’s (“Division”) website. http://www.state.tn.us/labor-wfd/forms/c31.pdf
Oral Communications
- You may communicate with the authorized medical provider orally if you provide a written summary of any opinions or statements of the authorized medical provider within 7 days of a request by the employee or employee’s attorney.
If you are an employer’s attorney and you have obtained a proper medical authorization form (Form C-31) signed by the employee and have provided it to the authorized medical provider:
- You must send written notice to the employee and employee’s attorney of the intended oral communication with the authorized medical provider at least 7 days in advance of the intended oral communication.
- After the oral communication occurs, you must provide a written summary to the employee and employee’s attorney of any opinions or statements of the authorized medical provider within 7 days of the communication. A request by the employee or employee’s attorney is not necessary for this requirement.
Failure to comply with these requirements shall result in the continued application of the implied confidentiality, prohibition against ex parte communications, and privacy of medical records in the custody of the authorized medical provider with respect to employers, employer’s attorneys, insurance carriers, and case managers.
Rights and Obligations of Authorized Medical Providers
The Overstreet Bill clarifies the rights and obligations of authorized medical providers.
If you are a medical provider authorized by the employer or its agents and you have been provided with a proper medical authorization form signed by the employee:
Written Communications
- The employer, employer’s attorney, insurance carrier, third party administrator, case manager, or utilization review agent may request medical records or reports from you, provided that the request is in writing. For records and reports, you may charge the requesting entity no more than ten dollars ($10.00) for the first twenty (20) pages and twenty-five cents (25¢) per page for each page after the first twenty (20) pages.
- The employer, employer’s attorney, insurance carrier, third party administrator, case manager, or utilization review agent may request medical information other than records or reports from you orally or in writing.
- The employee or employee’s attorney may request any medical information either orally or in writing if the employee or attorney provides an appropriate written authorization from the employee. Copying fees for records and reports are the same as for the employer.
- The Department of Labor and Workforce Development’s request for any medical information may be oral or in writing, provided that your response is in writing.
- In cases of utilization review appeals, the Department of Labor and Workforce Development may communicate with you orally or in writing.
Oral Communications
- The employer, employer’s attorney, insurance carrier, third party administrator, case manager, or utilization review agent may engage in telephone or face-to-face conversations with you.
- The employer, employer’s attorney, insurance carrier, third party administrator, case manager, or utilization review agent may request medical information other than records or reports from you orally or in writing.
- The employee or employee’s attorney may request any medical information either orally or in writing if the employee or attorney provides an appropriate written authorization from the employee.
- The Department of Labor and Workforce Development’s request for any medical information may be oral or in writing, provided that your response is in writing.
- In cases of utilization review appeals, the Department of Labor and Workforce Development may communicate with you orally or in writing.
Failure to obtain a proper medical authorization form will result in the communications being considered privileged. The authorized medical provider who has furnished privileged medical information without authorization may incur liability for providing such information.
The Overstreet Bill is welcomed news for Tennessee employers because it establishes the methods by which employers can communicate with authorized treating physicians. Employers must remember, however, that:
- It applies to medical providers authorized by the employer, and if the claim is denied or the employee goes outside of the workers’ compensation system for any reason, then this section does not apply until and unless the claim is accepted by the employer or benefits are ordered by a workers’ compensation specialist.
- Medical providers who are not authorized by the employer or its agents are still subject to the principles set forth in Overstreet v. TRW Commercial Steering Div., 256 S.W.3d 626 (Tenn. 2008).
- This statute and its requirements apply to all requests to and communications with authorized medical providers on or after July 1, 2009.
Other Important 2009 Workers' Compensation Legislation
Maximum & Minimum Benefit Changes
Temporary Benefits - The maximum weekly benefit rate for injuries occurring July 1, 2009, through June 30, 2010, is $837.00 or 110% of the state’s average weekly wage.
Permanent Benefits - The maximum weekly benefit rate for injuries occurring July 1, 2009, through June 30, 2010, is $761.00 or 100% of the state’s average weekly wage.
Minimum Weekly Benefit - The minimum weekly benefit rate for injuries occurring July 1, 2009, through June 30, 2010, for both temporary and permanent benefits is $114.15.
Reconsideration of a Prior Permanent Partial Disability Award/Settlement
Public Chapter 364 (SB1567/HB1471) prohibits reconsideration of a prior permanent partial disability award/settlement pursuant to T.C.A. § 50-6-241 in those instances where the ownership of the employer/business changes but the employee continues to be employed by the successor business with the same or higher rate of pay or the employee declines an offer of employment with the same or higher rate of pay. This applies to injuries occurring on or after July 1, 2009.
Maximum Total Benefit
For injuries occurring on or after July 1, 2009, the definition of “maximum total benefit” is equal to 400 times 100% of the state’s average weekly wage as set annually by the Division. Temporary total disability benefits are not included in the calculation of “maximum total benefits.”
Mental Injury Claims
New legislation caps the maximum length of time an injured employee can receive temporary disability benefits for a mental injury occurring on or after July 1, 2009.
Recreational Activities Clarification
Public Chapter 407 (SB1909/HB1500) excludes from workers’ compensation injuries those that occur during recreational activities not required by the employer, and that do not directly benefit the employer. Workers’ compensation injuries that are covered under workers’ compensation include those that occur where participation:
- was expressly or implicitly required by the employer; or
- produced a direct benefit to the employer beyond improvement in employee health and morale; or
- was during work hours and was part of the employee’s work duties; or
- occurred due to unsafe conditions that the employer had knowledge of and failed to curtail or cure.
This Act became effective June 11, 2009.
Permanent Partial Disability
SB2162/HB1963 places a one and one-half times cap on permanent partial disability settlements to body as a whole injuries and schedule member injuries worth 200 weeks or more if the employee is not eligible or authorized to work in the United States. This bill is effective for injuries sustained on or after July 1, 2009.
Workers’ Compensation Advisory Council
SB0607/HB0461 provides that the Workers’ Compensation Advisory Council composition will increase from seven to ten non-voting members. New members will be health care provider representatives licensed in Tennessee. The members will consist of a chiropractor, a physical therapist, and an occupational therapist. These members will not receive reimbursement for travel expenses. This bill becomes effective upon the Governor’s signature.
Reminder of Requirement for Construction Industry to Carry Workers’ Compensation Insurance
Chapter 1041 of the Public Acts of 2008 clarifies that unless you are a sole proprietor or partner (with no employees) getting paid directly by the property owner, an employer in the contracting group designated by the National Council of Compensation Insurance (NCCI) must have workers’ compensation insurance for all of their workers and themselves. This Act becomes effective December 31, 2009.
If you have any questions about this update, please do not hesitate to contact J. Bartlett Quinn.