Changes to the Tennessee Law Statutory Construction and Medical Causation: Comparative Views David Langham, Blake Matthews & Robert Durham, Panelists Jim Umsted, Moderator

COUNTING CARDS: CHANGES IN THE RECONSIDERATION CONCEPT Example No. 1 Employee suffers back injury on June 30, He undergoes surgery and subsequently returns to work on October 1, Authorized physician assigns a residual medical impairment of 4% to the body as a whole on December 15, 2014 and uses this as the date of MMI. Question No. 1:What is the employee’s maximum permanent partial disability entitlement ? Question No. 2: What is the employee’s reconsideration period in conjunction with the claim? Question No. 3: What are the implications for Question No. 1 and No. 2 if the date of injury is July, ? Text and your Questions to 22333

Example No. 2 Employee sustains meniscus injury to left knee on June 30, After undergoing arthroscopic procedure, employee returns to work on August 15, Thereafter, the authorized treating physician assigns a 2% impairment to the left lower extremity on December 15, However, the authorized treating physician utilizes an MMI date of September 15, Question No. 1: What is the employee’s maximum permanent partial disability entitlement ? Question No. 2: What is the employee’s reconsideration period in conjunction with the claim? Question No. 3: What are the implications for Question No. 1 and No. 2 if the date of injury is July, ? Text and your Questions to 22333

Definition of Injury: T.C.A. § (13) Prior to June 6, 2011 “Injury” and ‘personal injury” mean an injury by accident arising out of and in the course of employment that causes either disablement or death of the employee and shall include occupational diseases arising out of and in the course of employment that cause either disablement or death of the employee and shall include a mental injury arising out of and in the course of employment; Text and your Questions to 22333

Definition of Injury T.C.A. § (12) June 6, 2011 “Injury” and “personal injury:” (A)Mean an injury by accident, arising out of and in the course of employment, that causes either disablement or death of the employee; provided, that: (i) An injury is “accidental” only if the injury is caused by a specific incident, or set of incidents, arising out of and in the course of employment, and is identifiable by time and place of occurrence: and (ii) The opinion of the physician, selected by the employee from the employer's designated panel of physicians pursuant to §§ (a)(4)(A) or (a)(4)(B), shall be presumed correct on the issue of causation but said presumption shall be rebutted by a preponderance of the evidence; (B)Include a mental injury arising our of and in the course of employment; and (C) Do not include: (i) A disease in any form, except when the disease arises out of and in the course and scope of employment; or (ii) Cumulative trauma conditions, hearing loss, carpal tunnel syndrome, or any other repetitive motion conditions unless such conditions arose primarily out of and in the course and scope of employment; Text and your Questions to 22333

Definition of Injury T.C.A. § (13) July 1, 2014 “Injury” and “personal injury” mean an injury by accident, a mental injury, occupational disease including diseases of the heart, lung and hypertension, or cumulative trauma conditions including hearing loss, carpal tunnel syndrome or any other repetitive motion conditions, arising primarily out of and in the course and scope of employment, that causes death, disablement or the need for medical treatment of the employee; provided, that: (A)An injury is “accidental” only if the injury is caused by a specific incident, or set of incidents, arising primarily out of and in the course and scope of employment, and is identifiable by time and place of occurrence, and shall not include the aggravation of a preexisting disease, condition or ailment unless it can be shown to a reasonable degree of medical certainty that the aggravation arose primarily out of and in the course and scope of employment; (B) An injury “arises primarily out of and in the course and scope of employment” only if it has been shown by a preponderance of the evidence that the employment contributed more than fifty percent (50%) in causing the injury, considering all causes; (C) An injury causes death, disablement or the need for medical treatment only if it has been shown to a reasonable degree of medical certainty that it contributed more than fifty percent (50%) in cause the death, disablement or need for medical treatment, considering all causes; (D)“Shown to a reasonable degree of medical certainty” shall mean that, in the opinion of the physician, it is more likely than not considering all causes, as opposed to speculation or possibility; (E) The opinion of the treating physician, selected by the employee from the employer’s designated panel of physicians pursuant to § (a)(3), shall be presumed correct on the issue of causation but this presumption shall be rebuttable by a preponderance of the evidence; Text and your Questions to 22333

DeGalliford v. United Cabinet Co. Tennessee Supreme Court, Special Panel – November 2013 Session – Filed March 17, 2014 Cumulative Trauma case – “cumulative trauma conditions” do not include injuries resulting from repetitive work activities “unless such conditions arose primarily out of and in the course and scope of employment.” Text and your Questions to 22333

DeGalliford v. United Cabinet Co. Medical conflict case – Treating says “primary cause” – “Another doctor” says injury caused by “aging process.” Trial Court – Accepted treating physician. Appellate Court – Affirmed Text and your Questions to 22333

The Florida Experience “Major Contributing Cause” Text and your Questions to 22333

Fla. Stat. §440.09(1)(b)(1994) – “If an injury arising out of and in the course of employment combines with a preexisting disease or condition to cause or prolong disability or need for treatment, the employer must pay compensation or benefits required by this chapter only to the extent that the injury arising out of and in the course of employment is and remains the major contributing cause of the disability or need for treatment.” (Emphasis added). Text and your Questions to 22333

MCC is Factual “The determination of major contributing cause is a factual determination for the JCC to make based upon both medical and lay evidence in the record.” Lay is usually limited to what is readily observable, not what is dependent upon a medical opinion. Text and your Questions to 22333

MCC is Disputed The OJCC in Florida publishes all trial orders in a searchable public database. 4,940 instances found of “major contributing cause” 151 instances found of “Closet Maid v. Sykes” 187 reported cases in the appellate records. Text and your Questions to 22333

MCC Requires Greater than any other, Closet Maid. 4,940 instances found of “major contributing cause” 151 instances found of “Closet Maid v. Sykes” 187 reported cases in the appellate records. Text and your Questions to 22333

Fla. Stat. §440.09(1)(b)(2003) “If an injury arising out of and in the course of employment combines with a preexisting disease or condition to cause or prolong disability or need for treatment, the employer must pay compensation or benefits required by this chapter only to the extent that the injury arising out of and in the course of employment is and remains more than 50 percent responsible for the injury as compared to all other causes combined and thereafter remains the major contributing cause of the disability or need for treatment. Major contributing cause must be demonstrated by medical evidence only.” (Emphasis added). Text and your Questions to 22333

The Florida Experience “The Double Whammy” Text and your Questions to 22333

Occupational Hazard Duval County School Board v. Golly – Court distinguished precedent from the Supreme Court, noting: “the supreme court, in an admittedly ‘border line case,’ applied a paternalistic public policy that is no longer justified under the Florida Workers' Compensation Act.” Because, the amendment to include “it is the intent of the Legislature that the facts in a workers' compensation case are not to be interpreted liberally in favor of either the rights of the injured worker or the rights of the employer. – A similar change to that adopted by the Tennessee Legislature in the last session, and applicable after July Text and your Questions to 22333

Notable Tennessee Changes “Toto, I've a feeling we're not in Kansas anymore“ Text and your Questions to 22333

The Workers’ Compensation System is no longer “remedial” in nature The original workers’ compensation act was “remedial.” Courts frequently used this language to justify decisions that favored the employee in close or ambiguous cases. The new Act declares that the law “shall not be remedially or liberally construed but shall be construed fairly, impartially, and in accordance with basic principles of statutory construction.” In other words, the law should be applied impartially favoring neither the employee nor the employer. Text and your Questions to 22333

MMI is conclusively presumed when the treating physician ends all active medical treatment and only treatment of pain is provided The employer shall be given credit against an award of permanent disability for any amount of temporary total disability benefits paid to the employee after the employee reaches MMI as determined by a workers’ compensation judge. Text and your Questions to 22333

Impairment ratings The treating physician or chiropractor shall assign impairment ratings as a percentage of the body as a whole and shall not consider complaints of pain in calculating the degree of impairment, notwithstanding allowances for pain provided by the applicable edition of the AMA guides. Disability is to be measured based on the whole person with the maximum value for 100% loss increased to 450 weeks from 400 weeks. Text and your Questions to 22333

Standard impairment rating multipliers are eliminated, and factors supporting an increase in the base rating are limited The base rating is to be paid out regardless of employment status. An initial factor of 1.35 the rating may be awarded if appropriate. A workers compensation judge may increase the employee’s award by multiplying the initial award by factors associated with the injured employee’s education (1.45), age (1.2) and unemployment rate (1.3).

The “Court of Workers’ Compensation Claims” The Court of Workers’ Compensation claims will have jurisdiction over all contested claims for workers compensation with an alleged date of injury on or after July 1, The Administrator of the Division of Workers’ Compensation will have sole administrative authority over the court, including authority to appoint and to remove workers compensation judges. The governor shall appoint three judges to sit on the workers compensation appeal board. Text and your Questions to 22333

Mediator and Ombudsman programs The Administrator shall establish a mediators program to assist injured or disabled employees in protecting their rights, resolving disputes and obtaining information about workers compensation laws and practices. The mediator’s role is to conduct alternative dispute resolution to mediate all disputes between the parties related to resolution of the workers compensation claim. Text and your Questions to 22333

Questions? Text and your Questions to 22333