Tennessee Injury Lawyer Blog

Articles Posted in Workers Compensation

The new Tennessee Workers Compensation Act has gone to effect as of July 1, 2014. Unfortunately the practice impact of the new act is that permanently injured workers will now receive between 25% adn 75% less for any life changing permanent injury. All of this was done under the banner of being more “business friendly”. Unfortunately, this comes at a cost which we place on the backs of our working men and women.

I was recently interviewed about the new law. You can watch it below:

 
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Recently a widow filed a multimillion dollar wrongful death lawsuit here in Tennessee after her husband was killed in a construction accident. I was recently interviewed about this case. Construction accident cases always create complex legal issues. There tends to be a lot of finger pointing and the Tennessee Workers Compensation Law shields many of the employers. You can watch my interview on the topic below:

 
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A glimpse into the true feeling of the anit-worker Tennessee legislature came to light this week. While speaking to what was believe to be lobbyist or constitutes a representative was heard saying that he was going to “ram” the new Tennessee Workers Compensation Bill through his committee. You can read more about the statement and watch the video here. This is a sad day when a representative is more concerned about getting a new workers compensation bill pushed through instead of really considering the impact of the bill. So lets look at what this bill is going to do that the legislature is not willing to consider:

EXPAND THE SIZE OF TENNESSEE GOVERNMENT AND TAXPAYER SPENDING ON WC CLAIMS.

THE BILL
CREATES A BRAND NEW WC AGENCY

CREATES A NEW WC CZAR TO OVERSEE ALL WC CLAIMS
CREATES A NEW WC COURT WITH NEW WC JUDGES
PREVENTS OUR CURRENT JUDGES AND COURT SYSTEM FROM MAKING WC DECISIONS
THE WC CZAR GETS TO CHOOSE ALL WC JUDGES AND REVIEW ALL WC DECISIONS

THE CREATION OF THE NEW AGENCY AND WC COURT
SHIFTS COST OF HANDLING WC CLAIMS TO TAXPAYERS
SUCH COSTS HAVE ALWAYS BEEN PAID BY INSURERS

CUTS BENEFITS TO ALL INJURED WORKERS

THE PROPOSED WC BILL:

CUTS PAYMENTS TO INJURED WORKERS WHO CAN RETURN TO WORK BY ONE-THIRD. THESE CUTS, ALONG WITH CUTS IN 2008, MEAN AN INJURED WORKER WHO GOES BACK TO WORK COLLECTS 60% LESS THAN IN 2007.

DRASTICALLY CUTS PAYMENTS TO WORKERS WHO ARE SO INJURED THEY CANNOT GO BACK TO WORK. CHANGES IN 2004 AND 2008 ALREADY CUT THESE BENEFITS BY 25%-40%.

BUSINESSES AND INSURANCE COMPANIES HAVE SAVED COUNTLESS MILLIONS WHILE INJURED WORKERS CONTINUE TO HAVE ALL BENEFITS REDUCED
WHY? BECAUSE THEY TOLD THE GOVERNOR THEY WANT TO PAY LESS?

ENCOURAGE EMPLOYERS NOT TO OFFER INJURED WORKERS THEIR JOBS BACK
UNDER CURRENT WC LAW, WORKERS WHO ARE INJURED AND GET BETTER RECEIVE ADDITIONAL BENEFITS IF THE EMPLOYER DOES NOT OFFER THEM THEIR JOB BACK
THE BILL WOULD MAKE IT CHEAPER FOR EMPLOYERS TO SIMPLY TELL INJURED WORKERS THEY CANNOT RETURN TO THEIR JOBS
THIS WILL INCREASE NOT DECREASE THE JOBLESS RATE AS EMPLOYERS DECIDE ANY INJURED EMPLOYEE IS A LIABILITY – NO MATTER HIS OR HER EMPLOYMENT RECORD
THIS WILL ALSO SHIFT WORKERS This will also shift workers out of the WC system and into

DECREASES WORKPLACE SAFETY
FOR 100 YEARS OUR WC SYSTEM HAS ENCOURAGED EMPLOYERS TO CREATE SAFE WORKPLACES
BY REDUCING INJUIRES THE COSTS WC INSURANCE AND LOST WORK TIME IS REDUCED
THE BILL REDUCES WC BENEFITS SO MUCH THAT THERE WILL BE LESS INCENTIVE FOR COMPANIES TO PROMOTE WORKPLACE SAFETY
REDUCED OR ELIMINATES THE INDEPENDENT JUDGMENT OF YOUR DOCTOR
THE BILL CALLS FOR THE WC CZAR AND AGENCY STAFF TO SET MEDICAL TREATMENT GUIDELINES WHICH

DETERMINE WHAT INJUIRES ARE WORK RELATED
THE ALLOWABLE TREATMENT FOR EACH INJURY INCLUDING THE NUMBER OF THERAPY VISITS, THE TYPE OF SURGERY, THE TYPES OF MEDICATIONS, ETC.

THE SAME LEGISLATURE THAT RAILED AGAINST OBAMACARE FOR REDUCING PHYSICIAN JUDGMENT AND RATIONING MEDICAL TREATMENT HAS NO PROBLEM ALLOWING A NEW WC AGENCY DO THE SAME THING FOR INJURED CITIZENS

THE BILL INCREASES THE BURDEN ON TENNESSEE TAXPAYERS BY:

EXPANDING TENNESSEE GOVERNMENT THROUGH THE CREATION OF A NEW WORKERS’ COMPENSATION DIVISION

FORCING MANY INJURED WORKERS OUT OF THE WORKERS’ COMPENSATION SYSTEM AND ONTO TENNCARE, MEDICARE, SOCIAL SECURITY DISABILITY AND WELFARE.

INCREASES DELAYS AND LITIGATION COSTS FOR INJURED WORKERS’ CLAIMS

LIMITS YOUR ABILITY TO HIRE AN ATTORNEY AND TO HAVE YOUR CASE REVIEWED BY AN JUDGE Continue Reading

Our workers compensation system was established to help people get back to work and provide reasonable financial help to injured workers who suffer from life changing injuries. It simply ensures necessary medical treatment and a modest recovery to help offset loss of future wages. It does not make anyone rich, but it is simply a safety net. Unfortunately, it appears our Legislature is about take away this benefit from the hard working men and women of Tennessee.

Despite the modest recovery currently provided under our system, the Tennessee Legislature has decided it is in the best interest of our state to drastically cut the benefits of injured workers. In reality, this will do nothing but hurt the working men and women of Tennessee and provide corporate welfare to our businesses. Insurance companies and self-insured business will reap the financial benefit of paying less money to injured workers for the same injury. Specifically, under the current law an injured worker is only entitled to recover for their injury if it leaves him with a permanent disability that impacts his ability to earn a living. If this occurs, a court can consider how the injury will adversely affect the worker’s earnings and attempt to help with that loss. One great aspect of the current law is that it recognizes that each case is different and the court can assess each case on its individual merits. For example, if I injured my back I would receive very little if anything under the current system as it would probably not impact my income. However, a construction worker would receive a greater, but still limited, amount as a back injury would significantly reduce his or her income.

Under the current proposed changes, all injured workers will receive the same drastically reduced amount for their injury with almost no consideration for the impact any disability will have on their ability to earn a living. The court will not be able to consider independent factors based upon the individual circumstances of each case. All workers will basically be lumped together and, if they receive anything, it will be a modest fixed amount based upon an impairment assessed by a doctor selected specifically by the employer or their insurance company. It is very unlikely that this will come close to covering the losses sustained by a majority of the disabled workers. So what will be the impact of this new proposed system? In short, workers become more disposable. Factories lose financial incentive to ensure a safe working environment. The Tennessee taxpayers and government social security and disability will have to help support our workers who can no longer support themselves. All of this is being done in the name of being more “Business Friendly”.

I would strongly encourage all Tennesseans to contact their legislature to obtain more information on this Tennessee Workers’ Compensation “Reform”. Let them know that there must be a balance between protecting both business interests and our workers.
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Governor Haslam and the Tennessee Legislature have vowed to overhaul the Tennessee Workers Compensation System. They claim that our system is too costly. So the solution to reduce the costs is to cut benefits to injured workers. This race to cut benefits will result in costs to the state and families that should concern us all.

Under the prior administration there has already been one large workers compensation reform. As a result of these reforms injured workers are now often left with only nominal compensation for their injuries. It is important to note that an injured worker will receive no money unless they have permanent injury. Also, the money is only given to help make up for the loss of income the employee will have because of the injury. It is not there to make an Tennessee injured employe rich, it is there to allow them to survive. So what happens when these benefits are cut even further. It will likely leave people unable to work to be forced to rely upon help from the government. So what is the real costs of this “reform”.
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There seems to be a common perception that Tennessee Workmen’s Compensation cases involve only factory workers or truck drivers. Although, that is a significant portion of the cases due to the inherent dangerous nature of those jobs, there are many other types of work comp cases out there. One recent example involves the workers compensation claim of Tennessee Titan, Kevin Mawae.

Kevin Mawae was a center for the titans. He had outstanding seasons in 2008 and 2009. Unfortunately, these seasons also took a toll on his body. Specifically, he sustained permanent injuries to his shoulders, elbows, wrists, right thumb and lower back. However, Mr. Mawae is considered an employee of the Tennessee Titans and like almost all employees he is automatically covered by the Tennessee Workers Compensation Act. As a result, he settled his case for $114,000.00 and life time medical treatment.

The amount of this settlement says a few things about our system. To begin, I believe it is clear that the amount of money he received in no way begins to make up for the financial losses he will sustain as result of his injuries. Nor will this amount make up for the life of pain that this man is destined to endure. The reason for this is a result of the strict limitation our legislatures have placed on the amount of recover someone can obtain for a Tennessee work comp injury. The placed these limits by claiming it would make Tennessee more attractive to business because the costs of worker comp will be lower. Unfortunately, it is the injured workers how pay the price. However, it is important to note that he will receive medical treatment for these work injuries for the rest of his life. That is one great benefit of our system.
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Almost all of my workers compensation clients ask: “What are my employment rights now that I have been injured at work?” Although the answer to this question varies from case to case, we often find protections for our client outside of the Tennessee Workers Compensation Act. The most common protections are found in the Americans with Disabilities Act and the Family Medical Leave Act.

The Americans’ with Disabilities Act (ADA) is a Federal Act that prevents an employer from discriminating against any employee with a disability. As such, if a work injury leaves you with a physical disability, but you can still perform the essential functions of your job with limited or no accommodations, your job should be protected. The law requires your employer to make “reasonable” accommodations.
Unfortunately, the ADA does not cover all employees. To be covered, the employer must have fifteen or more people employed throughout the year. Additionally, the employee must have an impairment or perceived impairment that substantially limits or impairs his or her ability to perform a major life activity. Major life activities include things like walking, breathing, standing, thinking, etc. Finally, the employee must be able perform all of the essential functions of the job either without any accommodation or with a “reasonable” accommodation.
The ADA can help protect an injured employee both during medical treatment and after medical treatment for an injury has completed.
During treatment. The ADA may provide protection to an injured worker with restrictions who can still perform his or her regular job with, or without, any reasonable accommodation.
After Treatment. A worker who is released to work with restrictions after completing medical treatment is protected so long as he or she is capable of performing all of the essential functions of the job. If other positions open up – and the disabled employee is qualified to do the open position – then the ADA may provide a legal obligation to the employer to offer that alternative position.
As to the Family Medical Leave Act (FMLA), an employee can take up to twelve (12) weeks of unpaid leave in a 12-month period for any of the following reasons:
• For the birth and care of a newborn child of the employee;
• For the placement with the employee of a son or daughter for adoption or foster care;
• To care for a spouse, son, daughter, or parent with a serious health condition;
• To take medical leave when the employee is unable to work because of a serious health condition; or • For limited emergencies; when the employee’s spouse, son, daughter, or parent is on active duty or called to active duty status as a member of the National Guard or Reserve.

Similar to the ADA, the FMLA only applies to certain employees. To be covered by the FMLA, the employer must have 50 or more employees within a 75 mile radius of the worksite, the employee must have been employed for a minimum of 12 months and worked at least 1,250 hours over the previous 12 months.
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We all have an expectation of privacy with regard to our medical records. However, when you file a Tennessee workers compensation claim you will lose much of that privacy. Understandably, if you have a work injury the employer has a right to know the extent of the injury when resolving your case. The difficulty arises with the employer want to go beyond the medical records related to injury and dig into medical history that is not related. As a Tennessee Workers Comp lawyer I have faced this battle several times. So what are your rights?

To have some guidance we need to look at the TN workers comp act. Here is part of the relevant language:
It is the intent of the general assembly that the administration of the workers’ compensation system proceed in a timely manner and that the parties and the department have reasonable access to the employee’s medical records and medical providers that are pertinent to and necessary for the swift resolution of the employee’s workers’ compensation claim.

So the big question becomes what is “pertinent to and necessary” . Generally, this depends on your claim. If you have a back injury then the employer may have a right to all of your prior orthopedic records. They would argue these records are necessary to see if your injury is the result of a prior condition. However, if you have a broken leg then prior records probably aren’t relevant. The bottom line is that you will lose some medical privacy if you file a claim. However, the lose of that privacy should be very limited. A doctor patient privilege is a time honored relationship and it should stay that way as much as possible.
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Recently I discussed the current laws that can protect a woman’s job both during a pregnancy and after the birth of the child. In general there are three (3) key acts that can protect a pregnant employee’s job. These acts include the Pregnancy Discrimination Act (“PDA”), the Family Medical Leave Act (“FMLA”) and sometimes the Americans with Disabilities Act (ADA). If you would like to see our discussions on these acts you can watch the interview below:

 

If you want to know your employee rights you can contact one of our Tennessee Labor Lawyers to discuss your issues. These laws are there to give you the security of keeping your job and being able to financially support your family. We have helped Tennessee Workers across the state enforce their rights and we would be glad to discuss any issues you may have.

Finding a lawyer today is not always so easy. People are bombarded with commercials and advertising but how do you find a lawyer that is right for you and your case. We always suggest that before you hire a TN work comp lawyer you should perform some basic research. The best place to start is to ask someone you know that has already been through the work comp system who they used and did they fell a good job was performed. Next look on the internet. You can usually get some basic information about a lawyer’s experience and success from their websites. Last but not least go meet with a few lawyers. A workers compensation lawsuit can be very stressful so it is important that you and your lawyer “click”.

Recently, Jim Higgins, was interviewed about this subject. You can watch the interview by clicking below:

 
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