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Current as of January 02, 2024 | Updated by FindLaw Staff
This chapter shall be known and may be cited as the “Workers' Compensation Law.”
1919 Pub.Acts, c. 123, § 1; impl. am. by 1980 Pub.Acts, c. 534, § 1.
Formerly Shannon's Code Supp., § 3608a137; 1932 Code, § 6851; § 50-901.
As used in this chapter, unless the context otherwise requires:
(1) “Administrator” means the chief administrative officer of the division of workers' compensation of the department of labor and workforce development;
(2) “AMA guides” means the 6th edition of the American Medical Association Guides to the Evaluation of Permanent Impairment, American Medical Association, until a new edition is designated by the general assembly in accordance with § 50-6-204(d)(3)(C). The edition that is in effect on the date the employee is injured is the edition that shall be applicable to the claim;
(3)(A) “Average weekly wages” means the earnings of the injured employee in the employment in which the injured employee was working at the time of the injury during the period of fifty-two (52) weeks immediately preceding the date of the injury divided by fifty-two (52); but if the injured employee lost more than seven (7) days during the period when the injured employee did not work, although not in the same week, then the earnings for the remainder of the fifty-two (52) weeks shall be divided by the number of weeks remaining after the time so lost has been deducted;
(B) Where the employment prior to the injury extended over a period of less than fifty-two (52) weeks, the method of dividing the earnings during that period by the number of weeks and parts of weeks during which the employee earned wages shall be followed; provided, that results just and fair to both parties will be obtained;
(C) Where, by reason of the shortness of the time during which the employee has been in the employment of the employer, it is impracticable to compute the average weekly wages as defined in this subdivision (3), regard shall be had to the average weekly amount that, during the first fifty-two (52) weeks prior to the injury or death, was being earned by a person in the same grade, employed at the same work by the same employer, and if there is no such person so employed, by a person in the same grade employed in the same class of employment in the same district;
(D) Wherever allowances of any character made to any employee in lieu of wages are specified as part of the wage contract, they shall be deemed a part of the employee's earnings;
(4) “Benefit review conference” means a nonadversarial, informal dispute resolution proceeding to mediate and resolve workers' compensation disputes as provided in this chapter;
(5) “Case management” means medical case management or the ongoing coordination of medical care services provided to an injured or disabled employee on all cases where medical care expenses are expected to exceed a threshold;
(6) “Commissioner” means the commissioner of labor and workforce development;
(7) “Construction design professional” means:
(A) Any person possessing a valid registration or license entitling that person to practice the technical profession of architecture, engineering, landscape architecture or land surveying in this state;
(B) Any corporation, partnership, firm or other legal entity authorized by law to engage in the technical profession of architecture, engineering, landscape architecture or land surveying in this state; or
(C) Any person, firm or corporation providing interior space planning or design in this state;
(8) “Department” means the department of labor and workforce development;
(9) “Division” or “division of workers' compensation” means the division of workers' compensation of the department of labor and workforce development;
(10)(A) “Employee” includes every person, including a minor, whether lawfully or unlawfully employed, the president, any vice president, secretary, treasurer or other executive officer of a corporate employer without regard to the nature of the duties of the corporate officials, in the service of an employer, as employer is defined in subdivision (11), under any contract of hire or apprenticeship, written or implied. Any reference in this chapter to an employee who has been injured shall, where the employee is dead, also include the employee's legal representatives, dependents and other persons to whom compensation may be payable under this chapter;
(B) “Employee” includes a sole proprietor or a partner who devotes full time to the proprietorship or partnership and elects to be included in the definition of employee by filing written notice of the election with the division at least thirty (30) days before the occurrence of any injury or death, and may at any time withdraw the election by giving notice of the withdrawal to the division;
(C) The provisions of this subdivision (10), allowing a sole proprietor or a partner to elect to come under this chapter, shall not be construed to deny coverage of the sole proprietor or partner under any individual or group accident and sickness policy the sole proprietor or partner may have in effect, in cases where the sole proprietor or partner has elected not to be covered by this chapter, for injuries sustained by the sole proprietor or partner that would have been covered by this chapter had the election been made, notwithstanding any provision of the accident and sickness policy to the contrary. Nothing in this section shall require coverage of occupational injuries or sicknesses, if occupational injuries or sicknesses are not covered under the terms of the policy without reference to eligibility for workers' compensation benefits;
(D) In a work relationship, in order to determine whether an individual is an “employee,” or whether an individual is a “subcontractor” or an “independent contractor,” the following factors shall be considered:
(i) The right to control the conduct of the work;
(ii) The right of termination;
(iii) The method of payment;
(iv) The freedom to select and hire helpers;
(v) The furnishing of tools and equipment;
(vi) Self-scheduling of working hours; and
(vii) The freedom to offer services to other entities;
(E) “Employee” does not include a construction services provider, as defined in § 50-6-901, if the construction services provider is:
(i) Listed on the registry established pursuant to part 9 of this chapter as having a workers' compensation exemption and is working in the service of the business entity through which the provider obtained such an exemption;
(ii) Not covered under a policy of workers' compensation insurance maintained by the person or entity for whom the provider is providing services; and
(iii) Rendering services on a construction project that:
(a) Is not a commercial construction project, as defined in § 50-6-901; or
(b) Is a commercial construction project, as defined in § 50-6-901, and the general contractor for whom the construction services provider renders construction services complies with § 50-6-914(b)(2);
(11) “Employer” includes any individual, firm, association or corporation, the receiver or trustee of the individual, firm, association or corporation, or the legal representative of a deceased employer, using the services of not less than five (5) persons for pay, except as provided in § 50-6-902, and, in the case of an employer engaged in the mining and production of coal, one (1) employee for pay. If the employer is insured, it shall include the employer's insurer, unless otherwise provided in this chapter;
(12) “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 §§ 50-6-204(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 out 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;
(13)(A) “Maximum total benefit” means the sum of all weekly benefits to which a worker may be entitled;
(B) For injuries occurring between July 1, 1990, and June 30, 1991, the maximum total benefit shall be one hundred nine thousand two hundred dollars ($109,200);
(C) For injuries occurring on or after July 1, 1991, and before August 1, 1992, the maximum total benefit shall be one hundred seventeen thousand six hundred dollars ($117,600);
(D) For injuries occurring on or after July 1, 1992, the maximum total benefit shall be four hundred (400) weeks times the maximum weekly benefit except in instances of permanent total disability; and
(E) For injuries occurring on or after July 1, 2009, the maximum total benefit shall be four hundred (400) times one hundred percent (100%) of the state's average weekly wage, as determined pursuant to subdivision (14)(B), except in instances of permanent total disability. Temporary total disability benefits paid to the injured worker shall not be included in calculating the maximum total benefit;
(14)(A)(i) “Maximum weekly benefit” means the maximum compensation payable to the worker per week;
(ii) For injuries occurring between July 1, 1990, and June 30, 1991, the maximum weekly benefit shall be two hundred seventy-three dollars ($273) per week;
(iii) For injuries occurring on or after July 1, 1991, and before August 1, 1992, the maximum weekly benefit shall be two hundred ninety-four dollars ($294) per week;
(iv) For injuries occurring on or after August 1, 1992, and through June 30, 1993, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3 %) of the employee's average weekly wage up to seventy-eight percent (78%) of the state's average weekly wage, as determined by the department;
(v) For injuries occurring on or after July 1, 1993, and through June 30, 1994, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3 %) of the employee's average weekly wage up to eighty-two and four-tenths percent (82.4%) of the state's average weekly wage, as determined by the department;
(vi) For injuries occurring on or after July 1, 1994, and through June 30, 1995, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3 %) of the employee's average weekly wage up to eighty-six and eight-tenths percent (86.8%) of the state's average weekly wage, as determined by the department;
(vii) For injuries occurring on or after July 1, 1995, and through June 30, 1996, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3 %) of the employee's average weekly wage up to ninety-one and two-tenths percent (91.2%) of the state's average weekly wage, as determined by the department;
(viii) For injuries occurring on or after July 1, 1996, and through June 30, 1997, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3 %) of the employee's average weekly wage up to ninety-five and six-tenths percent (95.6%) of the state's average weekly wage as determined by the department;
(ix) For injuries occurring on or after July 1, 1997, and through June 30, 2004, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3 %) of the employee's average weekly wage up to one hundred percent (100%) of the state's average weekly wage as determined by the department;
(x) For injuries occurring on or after July 1, 2004, the maximum weekly benefit for permanent disability benefits shall be sixty-six and two thirds percent (66 2/3 %) of the employee's average weekly wage up to one hundred percent (100%) of the state's average weekly wage, as determined by the department; and
(xi)(a) For injuries occurring on or after July 1, 2004, through June 30, 2005, the maximum weekly benefit for temporary disability benefits shall be sixty-six and two thirds percent (66 2/3 %) of the employee's average weekly wage up to one hundred five percent (105%) of the state's average weekly wage, as determined by the department; and
(b) For injuries occurring on or after July 1, 2005, the maximum weekly benefit for temporary disability benefits shall be sixty-six and two thirds percent (66 2/3 %) of the employee's average weekly wage up to one hundred ten percent (110%) of the state's average weekly wage, as determined by the department;
(B) As used in subdivision (14)(A), the state average weekly wage shall be determined as of the preceding January 1, and shall be adjusted annually using the data from the division and shall be effective on July 1 of each year;
(15) “Mental injury” means a loss of mental faculties or a mental or behavioral disorder where the proximate cause is a compensable physical injury resulting in a permanent disability, or an identifiable work-related event resulting in a sudden or unusual mental stimulus. A mental injury shall not include a psychological or psychiatric response due to the loss of employment or employment opportunities;
(16)(A) “Minimum weekly benefit” means the minimum compensation per week payable to the worker;
(B) For injuries occurring between July 1, 1985, and June 30, 1986, the minimum weekly benefit shall be twenty dollars ($20.00) per week;
(C) For injuries occurring between July 1, 1986, and June 30, 1987, the minimum weekly benefit shall be twenty-five dollars ($25.00) per week;
(D) For injuries occurring between July 1, 1987, and June 30, 1988, the minimum weekly benefit shall be thirty dollars ($30.00) per week;
(E) For injuries occurring on or after July 1, 1988, and before July 1, 1993, the minimum weekly benefit shall be thirty-five dollars ($35.00) per week; and
(F) For injuries occurring on or after July 1, 1993, the minimum weekly benefit shall be fifteen percent (15%) of the state's average weekly wage, as determined by the department;
(17) “Utilization review” means evaluation of the necessity, appropriateness, efficiency and quality of medical care services, including the prescribing of one (1) or more Schedule II, III, or IV controlled substances for pain management for a period of time exceeding ninety (90) days from the initial prescription of such controlled substances, provided to an injured or disabled employee based on medically accepted standards and an objective evaluation of those services provided; provided, that “utilization review” does not include the establishment of approved payment levels, a review of medical charges or fees, or an initial evaluation of an injured or disabled employee by a physician specializing in pain management; and
(18) “Workers' compensation specialist” or “specialist” means a department employee who provides information and communication services regarding workers' compensation for employees and employers, and who conducts benefit review conferences and performs other duties as provided in this chapter.
1919 Pub.Acts, c. 123, § 2; 1923 Pub.Acts, c. 84, § 2; 1941 Pub.Acts, c. 90, § 1; 1947 Pub.Acts, c. 139, § 1; 1961 Pub.Acts, c. 184, § 1; 1963 Pub.Acts, c. 362, § 2; 1971 Pub.Acts, c. 300, § 1; 1977 Pub.Acts, c. 339, § 1; 1978 Pub.Acts, c. 499, § 1; 1978 Pub.Acts, c. 687, § 1; impl. am. by 1980 Pub.Acts, c. 534, §§ 1, 3; 1981 Pub.Acts, c. 239, § 1; 1985 Pub.Acts, c. 393, § 1; 1988 Pub.Acts, c. 923, § 1; 1990 Pub.Acts, c. 990, § 1;1991 Pub.Acts, c. 225, § 1;1992 Pub.Acts, c. 900, §§ 2, 19, 20, 28; 1997 Pub.Acts, c. 330, § 1, eff. July 1, 1997; 1999 Pub.Acts, c. 520, § 41, eff. June 17, 1999; 2002 Pub.Acts, c. 833, §§ 4, 5; 2004 Pub.Acts, c. 962, §§ 22, 23, 32; 2008 Pub.Acts, c. 1025, § 1, eff. May 28, 2008; 2009 Pub.Acts, c. 599, §§ 1 to 3, eff. July 8, 2009; 2010 Pub.Acts, c. 1149, § 3, 14, eff. March 1, 2011; 2011 Pub.Acts, c. 416, § 8, eff. June 6, 2011; 2011 Pub.Acts, c. 422, § 1;2012 Pub.Acts, c. 1100, § 1, eff. July 1, 2012.
Formerly Shannon's Code Supp., § 3608a138; 1932 Code, § 6852; 1950 Code Supp., § 6852; § 50-902.
(a) Every employer and employee subject to this chapter, shall, respectively, pay and accept compensation for personal injury or death by accident arising out of and in the course of employment without regard to fault as a cause of the injury or death; provided, that any person who has an exemption pursuant to § 50-6-104 or part 9 of this chapter shall not be bound if the employee has given, prior to any accident resulting in injury or death, notice to be exempted from this chapter as provided in this part.
(b) The election by any employee who is a corporate officer of the employer to be exempted from this chapter, shall not reduce the number of employees of the employer for the purposes of determining the requirements of coverage of the employer under this chapter.
1919 Pub.Acts, c. 123, § 3; 1973 Pub.Acts, c. 379, § 1; 1975 Pub.Acts, c. 198, § 1; impl. am. by 1980 Pub.Acts, c. 534, § 1; 2011 Pub.Acts, c. 422, § 2.
Formerly Shannon's Code Supp., § 3608a139; 1932 Code, § 6853; § 50-903.
(a) Any officer of a corporation may elect to be exempt from the operation of this chapter. Any officer who elects exemption and who, after electing exemption then revokes that exemption, shall give notice to that effect in accordance with a form prescribed by the division.
(b) Notice given pursuant to subsection (a) shall be given thirty (30) days prior to any accident resulting in injury or death; provided, that if any injury or death occurs less than thirty (30) days after the date of employment, notice of the exemption or acceptance given at the time of employment shall be sufficient notice of exemption.
(c) The notice of election not to accept this chapter, shall be as follows: the employee shall give written or printed notice to the employer of the employee's election not to be bound by the Workers' Compensation Law and file with the division, a duplicate, with proof of service on the employer attached to the notice, together with an affidavit of the employee that the action of the employee in rejecting the Workers' Compensation Law was not advised, counseled or encouraged by the employer or by anyone acting for the employer.
(d) This section shall not apply to any officer of a corporation, member of a limited liability company, partner, or sole proprietor who is engaged in the construction industry, as defined by § 50-6-901; instead, part 9 of this chapter shall apply to such officer, member, partner or sole proprietor.
1975 Pub.Acts, c. 198, § 2; impl. am. by 1980 Pub.Acts, c. 534, § 1; 2010 Pub.Acts, c. 1149, § 4, eff. March 1, 2011.
Formerly § 50-904.
Nothing in this chapter shall be construed as amending or repealing any statute or municipal ordinance relating to associations or funds for the relief, pensioning, retirement or other benefit of any employees of the municipal employer, or of the surviving spouses, children or dependents of the employees of the municipal employer, or as in any manner interfering with any statute or municipal ordinance as now or hereafter established.
1919 Pub.Acts, c. 123, § 5; impl. am. by 1980 Pub.Acts, c. 534, § 1.
Formerly Shannon's Code Supp., § 3608a141; 1932 Code, § 6855; § 50-905.
This chapter shall not apply to:
(1)(A) Any common carrier doing an interstate business while engaged in interstate commerce, which common carrier and the interstate business are already regulated as to employer's liability or workers' compensation by act of congress, it being the purpose of this law to regulate all such business that the congress has not regulated in the exercise of its jurisdiction to regulate interstate commerce; provided, that this chapter shall apply to those employees of the common carriers with respect to whom a rule of liability is not provided by act of congress; provided, further, that no common carrier by motor vehicle operating pursuant to a certificate of public convenience and necessity shall be deemed the employer of a leased-operator or owner-operator of a motor vehicle or vehicles under a contract to such a common carrier;
(B) Notwithstanding subdivision (1)(A), a leased operator or a leased owner/operator of a motor vehicle under contract to a common carrier may elect to be covered under any policy of workers' compensation insurance insuring the common carrier upon written agreement of the common carrier, by filing written notice of the contract, on a form prescribed by the commissioner, with the division; provided, that the election shall in no way terminate or affect the independent contractor status of the leased operator or leased owner/operator for any other purpose than to permit workers' compensation coverage. The election of coverage may be terminated by the leased operator, leased owner/operator, or common carrier by providing written notice of the termination to the division and to all other parties consenting to the prior election. The termination shall be effective thirty (30) days from the date of the notice to all other parties consenting to the prior election and to the division;
(2) Any person whose employment at the time of injury is casual, that is, one who is not employed in the usual course of trade, business, profession or occupation of the employer;
(3) Domestic servants and employers of domestic servants;
(4) Farm or agricultural laborers and employers of those laborers;
(5) In cases where fewer than five (5) persons are regularly employed, except as provided in § 50-6-902; provided, that in those cases the employer may accept this chapter by filing written notice of the acceptance with the division at least thirty (30) days before the happening of any accident or death, and may at any time withdraw the acceptance by giving like notice of withdrawal;
(6) The state, counties of the state and municipal corporations; provided, that the state, any county or municipal corporation may accept this chapter by filing written notice of the acceptance with the division under the administrator, at least thirty (30) days before the happening of any accident or death, and may at any time withdraw the acceptance by giving like notice of the withdrawal. The state, any county or municipal corporation may accept this chapter as to any department or division of the state, county or municipal corporation by filing written notice of acceptance with the division under the administrator, at least thirty (30) days before the happening of any accident or death and may, at any time, withdraw acceptance for the division or department by giving like notice of the withdrawal, and the acceptance by the state, county or municipal corporation for any department or division of the state, county or municipal corporation shall have effect only of making the department or division designated subject to the terms of this chapter; or
(7) Any person performing voluntary service as a ski patrolperson who receives no compensation for the services other than meals, lodging or the use of ski tow or ski lift facilities or any combination of meals, lodging and the use of ski tow or ski lift facilities.
1919 Pub.Acts, c. 123, § 6; 1923 Pub.Acts, c. 84, §§ 2, 5; 1941 Pub.Acts, c. 20, § 1; 1941 Pub.Acts, c. 90, § 2; 1943 Pub.Acts, c. 120, § 1; 1976 Pub.Acts, c. 495, § 1; 1976 Pub.Acts, c. 602, § 1; impl. am. by 1980 Pub.Acts, c. 534, § 1; 1988 Pub.Acts, c. 525, § 1; 1997 Pub.Acts, c. 330, § 2, eff. July 1, 1997; 1999 Pub.Acts, c. 520, § 41, eff. June 17, 1999; 2010 Pub.Acts, c. 1149, § 15, eff. March 1, 2011.
Formerly Shannon's Code Supp., § 3608a142; 1932 Code, § 6856; 1950 Code Supp., § 6856; § 50-906.
This chapter shall apply to coal mine operators and to their employees.
1972 Pub.Acts, c. 699, § 1; impl. am. by 1980 Pub.Acts, c. 534, § 1.
Formerly 1932 Code, § 6857; § 50-907.
(a) The rights and remedies granted to an employee subject to this chapter, on account of personal injury or death by accident, including a minor whether lawfully or unlawfully employed, shall exclude all other rights and remedies of the employee, the employee's personal representative, dependents or next of kin, at common law or otherwise, on account of the injury or death.
(b) This section shall not be construed to preclude third party indemnity actions against an employer who has expressly contracted to indemnify the third party.
1919 Pub.Acts, c. 123, § 8; 1961 Pub.Acts, c. 184, § 2; impl. am. by 1980 Pub.Acts, c. 534, § 1; 1985 Pub.Acts, c. 326, § 1.
Formerly Shannon's Code Supp., § 3608a157; 1932 Code, § 6859; § 50-908.
Nothing in this chapter shall be construed to relieve any employer or employee from penalty for failure or neglect to perform any statutory duty.
1919 Pub.Acts, c. 123, § 9; impl. am. by 1980 Pub.Acts, c. 534, § 1.
Formerly Shannon's Code Supp., § 3608a158; 1932 Code, § 6860; § 50-909.
(a) No compensation shall be allowed for an injury or death due to:
(1) The employee's willful misconduct;
(2) The employee's intentional self-inflicted injury;
(3) The employee's intoxication or illegal drug usage;
(4) The employee's willful failure or refusal to use a safety device;
(5) The employee's willful failure to perform a duty required by law; or
(6) The employee's voluntary participation in recreational, social, athletic or exercise activities, including, but not limited to, athletic events, competitions, parties, picnics, or exercise programs, whether or not the employer pays some or all of the costs of the activities unless:
(A) Participation was expressly or impliedly required by the employer;
(B) Participation produced a direct benefit to the employer beyond improvement in employee health and morale;
(C) Participation was during employee's work hours and was part of the employee's work-related duties; or
(D) The injury occurred due to an unsafe condition during voluntary participation using facilities designated by, furnished by or maintained by the employer on or off the employer's premises and the employer had actual knowledge of the unsafe condition and failed to curtail the activity or program or cure the unsafe condition.
(b) If the employer defends on the ground that the injury arose in any or all of the ways stated in subsection (a), the burden of proof shall be on the employer to establish the defense.
(c)(1) In cases where the employer has implemented a drug-free workplace pursuant to chapter 9 of this title, if the injured employee has, at the time of the injury, a blood alcohol concentration level equal to or greater than eight hundredths of one percent (.08%) for non-safety sensitive positions, or four hundredths of one percent (.04%) for safety-sensitive positions, as determined by blood or breath testing, or if the injured employee has a positive confirmation of a drug as defined in § 50-9-103, then it is presumed that the drug or alcohol was the proximate cause of the injury. This presumption may be rebutted by clear and convincing evidence that the drug or alcohol was not the proximate cause of injury. Percent by weight of alcohol in the blood must be based upon grams of alcohol per one hundred milliliters (100 mL)of blood. If the results are positive, the testing facility must maintain the specimen for a minimum of three hundred sixty-five (365) days at minus twenty degrees celsius (-20° C.). Blood serum may be used for testing purposes under this chapter; provided, however, that if this test is used, the presumptions under this section do not arise unless the blood alcohol level is proved to be medically and scientifically equivalent to or greater than the comparable blood alcohol level that would have been obtained if the test were based on percent by weight of alcohol in the blood. However, if, before the accident, the employer had actual knowledge of and acquiesced in the employee's presence at the workplace while under the influence of alcohol or drugs, the employer retains the burden of proof in asserting any defense under subsections (a) and (b), and this subsection (c) does not apply.
(2) If the injured worker refuses to submit to a drug test, it shall be presumed, in the absence of clear and convincing evidence to the contrary, that the proximate cause of the injury was the influence of drugs, as defined in § 50-9-103.
(3) The commissioner of labor and workforce development shall provide, by rule, for the authorization and regulation of drug testing policies, procedures and methods. Testing of injured employees pursuant to a drug-free workplace program under chapter 9 of this title shall not commence until the rules are adopted.
1919 Pub.Acts, c. 123, § 10; 1994 Pub.Acts, c. 765, § 1, eff. July 1, 1994; 1996 Pub.Acts, c. 944, § 49, eff. July 1, 1996; 1999 Pub.Acts, c. 520, § 41, eff. June 17, 1999; 2005 Pub.Acts, c. 390, § 1, eff. June 9, 2005; 2009 Pub.Acts, c. 407, § 1, eff. June 11, 2009; 2011 Pub.Acts, c. 203, §§ 1, 2, eff. July 1, 2011.
Formerly Shannon's Code Supp., § 3608a159; 1932 Code, § 6861; § 50-910.
No employer who fails to secure payment of compensation as required by this chapter, shall, in any suit brought against the employer by an employee covered by this chapter or by the dependent or dependents of the employee, to recover damages for personal injury or death arising from an accident, be permitted to defend the suit upon any of the following grounds:
(1) The employee was negligent;
(2) The injury was caused by the negligence of a fellow servant or fellow employee; or
(3) The employee had assumed the risk of the injury.
1919 Pub.Acts, c. 123, § 11; 1973 Pub.Acts, c. 379, § 2; impl. am. by 1980 Pub.Acts, c. 534, § 1.
Formerly Shannon's Code Supp., § 3608a160; 1932 Code, § 6862; § 50-911.
(a) When the injury or death for which compensation is payable under this chapter was caused under circumstances creating a legal liability against some person other than the employer to pay damages, the injured worker, or the injured worker's dependents, shall have the right to take compensation under this chapter, and the injured worker, or those to whom the injured worker's right of action survives at law, may pursue the injured worker's or their remedy by proper action in a court of competent jurisdiction against the other person.
(b) In the event of a recovery from the other person by the worker, or those to whom the worker's right of action survives, by judgment, settlement or otherwise, the attorney representing the injured worker, or those to whom the injured worker's right of action survives, and effecting the recovery, shall be entitled to a reasonable fee for the attorney's services, and the attorney shall have a first lien for the fees against the recovery; provided, that if the employer has engaged other counsel to represent the employer in effecting recovery against the other person, then a court of competent jurisdiction shall, upon application, apportion the reasonable fee between the attorney for the worker and the attorney for the employer, in proportion to the services rendered.
(c)(1) In the event of a recovery against the third person by the worker, or by those to whom the worker's right of action survives, by judgment, settlement or otherwise, and the employer's maximum liability for workers' compensation under this chapter has been fully or partially paid and discharged, the employer shall have a subrogation lien against the recovery, and the employer may intervene in any action to protect and enforce the lien.
(2) In the event the net recovery by the worker, or by those to whom the worker's right of action survives, exceeds the amount paid by the employer, and the employer has not, at the time, paid and discharged the employer's full maximum liability for workers' compensation under this chapter, the employer shall be entitled to a credit on the employer's future liability, as it accrues, to the extent the net recovery collected exceeds the amount paid by the employer.
(3) In the event the worker, or those to whom the worker's right of action survives, effects a recovery, and collection of that recovery, from the other person, by judgment, settlement or otherwise, without intervention by the employer, the employer shall nevertheless be entitled to a credit on the employer's future liability for workers' compensation, as it accrues under this chapter, to the extent of the net recovery.
(d)(1) The action against the other person by the injured worker, or those to whom the injured worker's right of action survives, must be instituted in all cases within one (1) year from the date of injury.
(2) Failure on the part of the injured worker, or those to whom the injured worker's right of action survives, to bring the action within the one-year period shall operate as an assignment to the employer of any cause of action in tort that the worker, or those to whom the worker's right of action survives, may have against any other person for the injury or death, and the employer may enforce the cause of action in the employer's own name or in the name of the worker, or those to whom the worker's right of action survives, for the employer's benefit, as the employer's interest may appear, and the employer shall have six (6) months after the assignment within which to commence the suit.
(3) If the cause of action described in subsection (a) arises in a jurisdiction other than this state and the other jurisdiction has a statute of limitations for personal injury and wrongful death greater than the one-year statute of limitations provided in this state, the court hearing the cause of action shall apply the statute of limitations that provides the injured worker, or those to whom the injured worker's right of action survives, the greatest amount of time in which to institute an action.
(4) Under no circumstances shall the negligent party described in subsection (a) benefit from this subsection (d).
1919 Pub.Acts, c. 123, § 14; 1949 Pub.Acts, c. 277, § 1; 1963 Pub.Acts, c. 333, § 1; impl. am. by 1980 Pub.Acts, c. 534, § 1; 1985 Pub.Acts, c. 393, § 2.
Formerly Shannon's Code Supp., § 3608a163; 1932 Code, § 6865; 1950 Code Supp., § 6865; § 50-914.
(a) A principal contractor, intermediate contractor or subcontractor shall be liable for compensation to any employee injured while in the employ of any of the subcontractors of the principal contractor, intermediate contractor or subcontractor and engaged upon the subject matter of the contract to the same extent as the immediate employer.
(b) Any principal contractor, intermediate contractor or subcontractor who pays compensation under subsection (a) may recover the amount paid from any person who, independently of this section, would have been liable to pay compensation to the injured employee, or from any intermediate contractor.
(c) Every claim for compensation under this section shall be in the first instance presented to and instituted against the immediate employer, but the proceedings shall not constitute a waiver of the employee's rights to recover compensation under this chapter from the principal contractor or intermediate contractor; provided, that the collection of full compensation from one (1) employer shall bar recovery by the employee against any others, nor shall the employee collect from all a total compensation in excess of the amount for which any of the contractors is liable.
(d) This section applies only in cases where the injury occurred on, in, or about the premises on which the principal contractor has undertaken to execute work or that are otherwise under the principal contractor's control or management.
(e) A subcontractor under contract to a general contractor may elect to be covered under any policy of workers' compensation insurance insuring the contractor upon written agreement of the contractor, by filing written notice of the election, on a form prescribed by the commissioner, with the division. It is the responsibility of the general contractor to file the written notice with the division. Failure of the general contractor to file the written notice shall not operate to relieve or alter the obligation of an insurance company to provide coverage to a subcontractor when the subcontractor can produce evidence of payment of premiums to the insurance company for the coverage. The election shall in no way terminate or affect the independent contractor status of the subcontractor for any other purpose than to permit workers' compensation coverage. The election of coverage may be terminated by the subcontractor or general contractor by providing written notice of the termination to the division and to all other parties consenting to the prior election. The termination shall be effective thirty (30) days from the date of the notice to all other parties consenting to the prior election and to the division.
(f) This section shall not apply to a construction services provider, as defined by § 50-6-901.
1919 Pub.Acts, c. 123, § 15; 1988 Pub.Acts, c. 525, § 2; 1992 Pub.Acts, c. 793, § 1;1997 Pub.Acts, c. 330, §§ 3, 4, eff. July 1, 1997; 1998 Pub.Acts, c. 1024, § 23, eff. July 1, 1998; 1999 Pub.Acts, c. 404, §§ 2, 3, eff. July 1, 1999; 1999 Pub.Acts, c. 520, § 41, eff. June 17, 1999; 2008 Pub.Acts, c. 1041, §§ 1 to 4, eff. Dec. 31, 2009; 2010 Pub.Acts (1st Ex. Sess.), c. 1, § 1, eff. Jan. 22, 2010; 2010 Pub.Acts (1st Ex. Sess.), c. 1, § 2, eff. March 1, 2011; 2010 Pub.Acts, c. 1149, §§ 1, 5, eff. March 1, 2011.
Formerly Shannon's Code Supp., § 3608a164; 1932 Code, § 6866; § 50-915.
(a) No contract or agreement, written or implied, or rule, regulation or other device, shall in any manner operate to relieve any employer, in whole or in part, of any obligation created by this chapter, except as provided in subsection (b).
(b) Any employer may set off from temporary total, temporary partial, permanent partial and permanent total disability benefits any payment made to an employee under an employer funded disability plan for the same injury; provided, that the disability plan permits such an offset. The offset from a disability plan may not result in an employee's receiving less than the employee would otherwise receive under this chapter. In the event that a collective bargaining agreement is in effect, this subsection (b) shall be subject to the agreement of both parties.
1919 Pub.Acts, c. 123, § 16; 1996 Pub.Acts, c. 919, § 1, eff. July 1, 1996.
Formerly Shannon's Code Supp., § 3608a165; 1932 Code, § 6867; § 50-916.
(a) For purposes of this section, an employee is considered to be temporarily in a state working for an employer if the employee is working for such employee's employer in a state other than the state where such employee is primarily employed for no more than fourteen (14) consecutive days, or no more than twenty-five (25) days total, during a calendar year.
(b)(1) If an employee in this state who is subject to this chapter temporarily leaves this state incidental to the employee's employment and receives an accidental injury arising out of and in the course and scope of the employee's employment, the employee, or the employee's beneficiaries in the case of an injury that results in the employee's death, shall be entitled to the benefits of this chapter as if the employee was injured in this state.
(2) If an employee, while working outside the territorial limits of this state other than temporarily, suffers an injury on account of which the employee, or, in the event of the employee's death, the employee's dependents, would have been entitled to the benefits provided by this chapter had the injury occurred within this state, the employee, or in the event of the employee's death resulting from the injury, the employee's dependents, shall be entitled to the benefits provided by this chapter; provided, that at the time of the injury:
(A) The employment was principally localized within this state;
(B) The contract of hire was made in this state; or
(C) If at the time of the injury the injured worker was a Tennessee resident and there existed a substantial connection between this state and the particular employer and employee relationship.
(c)(1) An employee from another state and the employee's employer are exempt from this chapter while the employee is temporarily in this state performing work for the employer if:
(A) The employer has furnished workers' compensation insurance coverage under the workers' compensation insurance or similar laws of the other state to cover the employee's employment while in this state;
(B) The extraterritorial provisions of this chapter are recognized in the other state; and
(C) Employees and employers who are covered in this state are likewise exempted from the application of the workers' compensation insurance or similar laws of the other state.
(2) The benefits under the workers' compensation insurance or similar laws of the other state, or other remedies under similar law, are the exclusive remedy against the employer for any injury, whether resulting in death or not, received by the employee while temporarily working for that employer in this state.
(3) A certificate from the duly authorized officer of the appropriate department of another state certifying that the employer of such other state is insured in that state and has provided extraterritorial coverage insuring employees while working in this state is prima facie evidence that the employer carries such workers' compensation insurance.
(4) Whenever in any appeal or other litigation the construction of the laws of another jurisdiction is required, the courts shall take judicial notice of such construction of the laws of the other jurisdiction.
(5) When an employee has a claim under the workers' compensation insurance laws of another state, territory, province, or foreign nation for the same injury or occupational disease as the claim filed in this state, the total amount of compensation paid or awarded under such other workers' compensation law shall be credited against the compensation due under this chapter.
(d)(1) Any employer who is insured in this state for workers' compensation under this chapter, and who has extraterritorial coverage under this chapter, for their employees while such employees are temporarily working outside this state within the meaning of subsection (a) may obtain a certificate evidencing such coverage at the time that the application for certification is made from the commissioner of commerce and insurance.
(2) In order to obtain a certificate under subdivision (d)(1), an employer shall:
(A) File an application with the commissioner of commerce and insurance, on a form that is approved by the commissioner of commerce and insurance;
(B) Pay a filing fee to the department of commerce and insurance in the amount of one hundred dollars ($100). The commissioner of commerce and insurance may change the amount of the filing fee required by this subdivision (d)(2)(B) by promulgating a rule pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, as necessary to ensure that the proceeds of such filing fees are sufficient to offset the cost of processing applications and issuing the certificates authorized by this subsection (d); and
(C) Submit to the commissioner of commerce and insurance a copy of the declaration page from the employer's workers' compensation insurance policy, or such proof as the commissioner of commerce and insurance may require to demonstrate that the employer is self insured for workers' compensation and the territorial limits of such coverage.
(3) The commissioner of commerce and insurance is authorized to issue a certificate that certifies that, at the time that the application for certification is made, the applicant employer in this state is insured for workers' compensation under this chapter, and that such employers have extraterritorial coverage under this chapter, for their employees while such employees are temporarily working outside this state within the meaning of subsection (a).
1919 Pub.Acts, c. 123, § 19; 1975 Pub.Acts, c. 85, § 1; 1976 Pub.Acts, c. 389, § 1; 2004 Pub.Acts, c. 648, § 1;2013 Pub.Acts, c. 367, § 1, eff. May 13, 2013.
Formerly Shannon's Code Supp., § 3608a168; 1932 Code, § 6870; § 50-917.
The rule of common law requiring strict construction of statutes in derogation of common law shall not be applicable to this chapter, but this chapter is declared to be a remedial statute, which shall be given an equitable construction by the courts, to the end that the objects and purposes of this chapter may be realized and attained.
1919 Pub.Acts, c. 123, § 47; impl. am. by 1980 Pub.Acts, c. 534, § 1.
Formerly Shannon's Code Supp., § 3608a197; 1932 Code, § 6901; § 50-918.
Every employee who is a corporate officer and who elects not to operate under this chapter, in any action to recover damages for personal injury or death by accident brought against an employer who has elected to operate under this chapter, shall proceed as at common law, and the employer in the suit may make use of all common law defenses. This section shall not apply to any officer of a corporation, member of a limited liability company, partner, or sole proprietor who is engaged in the construction industry, as defined by § 50-6-901; instead, part 9 of this chapter shall apply to such officer, member, partner or sole proprietor.
1975 Pub.Acts, c. 198, § 3; impl. am. by 1980 Pub.Acts, c. 534, § 1; 2010 Pub.Acts, c. 1149, § 6, eff. March 1, 2011.
Formerly § 50-919.
(a) The division of workers' compensation shall, by rule promulgated pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, establish and collect penalties for the following:
(1) Failure of a covered employer to provide workers' compensation coverage or qualify as a self-insurer;
(2) Late filing of accident reports;
(3) Bad faith denial of claims;
(4) Late filing of notice of denial of claim;
(5) Late filing of notice of change in benefit payments;
(6) Late filing with the department of notice of filing of lawsuits by employees or employee representatives; and
(7) Late filing of judgments by insurance companies or by employers, if self-insured.
(b) All penalties collected by the department from an employer for failure to provide workers' compensation coverage or failure to qualify as a self-insurer shall be paid into and become a part of the uninsured employers fund. All other penalties collected by the department shall be paid into and become a part of the second injury fund.
(c) The commissioner, commissioner's designee, or an agency member appointed by the commissioner, may assess the penalties authorized by this chapter, upon providing notice and an opportunity for a hearing to an employer, an employee, an insurer, or a self-insured pool or trust. If a hearing is requested, the commissioner, commissioner's designee, or an agency member appointed by the commissioner shall have the authority to hear the matter as a contested case, and the authority to hear the administrative appeal of an agency decision, relating to the assessment of the penalties authorized by this chapter. When a hearing or review of an agency decision is requested, the requesting party shall have the burden of proving, by a preponderance of the evidence, that the penalized party was either not subject to this chapter, or that the penalties assessed pursuant to this chapter should not have been assessed.
1985 Pub.Acts, c. 393, § 18; 1999 Pub.Acts, c. 520, § 41, eff. June 17, 1999; 2000 Pub.Acts, c. 972, § 3, eff. July 1, 2000; 2001 Pub.Acts, c. 192, § 8, eff. July 1, 2001; 2004 Pub.Acts, c. 962, § 8;2005 Pub.Acts, c. 390, § 2, eff. June 9, 2005.
(a) In order to provide greater awareness among employers and employees of the rights and obligations of the workers' compensation laws, the division of workers' compensation shall institute an information awareness program. The program shall:
(1) Involve a statewide effort to consult with employers on the actions required;
(2) Provide that employers with frequent incidents of injuries be targeted for referral to appropriate agencies on accident prevention;
(3) Provide education and information aimed at preventing disputes and delays in the processing of claims, through the use of speakers' seminars and conferences;
(4) Provide a system to communicate developments in the law to interested groups;
(5) Provide injured employees with complete information on their rights to compensation and day-to-day assistance with problems on their claims;
(6) Develop general informational literature and audio-visual aids for both employees and employers; and
(7) Provide a toll-free number for employers and employees to receive information from and ask questions of the department.
(b) Any publications for distribution under this section must be published in accordance with the rules, regulations, policies and procedures of the state publications committee.
1985 Pub.Acts, c. 393, § 19; 1990 Pub.Acts, c. 1024, § 29;1999 Pub.Acts, c. 520, § 41, eff. June 17, 1999.
(a) No construction design professional, or any employee of the construction design professional, who is retained to perform professional services on a construction project, shall be liable for the personal injury or death of any nonemployee of the construction design professional, working on the construction project, unless the construction design professional or any employee of the construction design professional is guilty of negligence that is a proximate cause of the injury or death of the nonemployee.
(b) Nothing in this section shall be construed to affect the rights or responsibilities of any person under this chapter.
(c) Rule 11 of the Tennessee Rules of Civil Procedure shall apply in all actions against construction design professionals.
1988 Pub.Acts, c. 923, §§ 2 to 4.
(a)(1)(A) There is created an advisory council on workers' compensation. There shall be seven (7) voting members of the council, with three (3) representing employers, three (3) representing employees, and one (1) member who shall serve as the chair and who shall be the state treasurer or the state treasurer's designee. There shall be ten (10) nonvoting members of the council. All members shall have a demonstrable working knowledge of the workers' compensation system.
(B) The chair shall preside at meetings of the council and, in consultation with the voting members of the council, shall supervise the work of the staff of the council. The council shall meet at the call of the chair or at the written call of four (4) voting members of the council which written call shall be delivered to the chair. The chair may vote only on matters related to the administration of the council or the council's research. The chair is not permitted to vote on any matter that constitutes the making of a policy recommendation to the governor or to the general assembly.
(C) The speaker of the house of representatives, the speaker of the senate and the governor shall each appoint one (1) employer and one (1) employee representative to the council, who shall be voting members. Representatives, officers and employees from labor organizations or business trade organizations are eligible for appointment. In making the appointments of the employer representatives, the appointing authorities shall strive to ensure a balance of a commercially insured employer, self-insured employer or an employer who operates a small business. At least one (1) employee representative shall be from organized labor. Proxy voting is prohibited by voting members of the council; provided, however, that in instances where a voting member will be absent from a vote of the council, the member's appointing authority is authorized to appoint an alternate or designee for the vote or votes.
(D) Voting members shall serve four-year terms and the terms shall be staggered so that the terms of only three (3) voting members shall terminate at the same time. The terms of the voting members who are serving as of June 30, 2003, shall be amended as follows: those members whose terms are scheduled to expire in 2004 shall expire on June 30, 2004, and the successors shall serve a four-year term to begin on July 1, 2004, and to end on June 30, 2008, and those members whose terms are scheduled to expire in 2006 shall expire on June 30, 2006, and the successors shall serve a four-year term to begin on July 1, 2006, and to expire on June 30, 2010. Thereafter, all four-year terms shall begin on July 1 and terminate on June 30, four (4) years thereafter.
(E)(i) The governor shall also appoint ten (10) nonvoting members of the council as follows: one (1) to represent local governments, one (1) to represent insurance companies, five (5) to represent health care providers and three (3) attorneys. The nonvoting local government representative may be appointed from lists of qualified persons submitted by interested municipal and county organizations including, but not limited to, the Tennessee Municipal League and the Tennessee County Services Association. The nonvoting insurance company representative may be appointed from lists of qualified persons submitted by interested insurance organizations including, but not limited to, the Alliance of American Insurers and the American Insurance Association. One (1) nonvoting healthcare provider representative may be appointed from lists of qualified persons submitted by interested medical organizations including, but not limited to, the Tennessee Medical Association and one (1) nonvoting healthcare provider representative may be appointed from lists of qualified persons submitted by interested hospital organizations including, but not limited to, the Tennessee Hospital Association. One (1) nonvoting health care provider representative shall be a chiropractor who is licensed in this state, one (1) nonvoting health care provider representative shall be a physical therapist who is licensed in this state, and one (1) nonvoting health care provider representative shall be an occupational therapist who is licensed in this state, and these members shall not receive reimbursement for travel expenses. The nonvoting attorney members shall be appointed as follows: one (1) who shall primarily represent injured workers' compensation claimants, who may be appointed from lists of qualified persons submitted by interested justice organizations including, but not limited to, the Tennessee Association for Justice; one (1) who shall primarily represent employers or workers' compensation insurers, who may be appointed from lists of qualified persons submitted by interested defense lawyer organizations including, but not limited to, the Tennessee Defense Lawyers Association; and one (1) who may be appointed from lists of qualified persons submitted by interested legal organizations including, but not limited to the Tennessee Bar Association.
(ii) The appointing authorities shall consult with interested groups including, but not limited to, the organizations listed in subdivision (a)(E)(i) to determine qualified persons to fill positions on the council.
(F) The nonvoting members shall be appointed to four-year terms that shall begin on July 1 and terminate on June 30, four (4) years thereafter.
(G) The chair of the commerce and labor committee of the senate, the chair of the consumer and human resources committee of the house of representatives, the commissioner of labor and workforce development and the commissioner of commerce and insurance, or their designees, shall be ex officio, nonvoting members of the council.
(2) Each voting and nonvoting member of the advisory council on workers' compensation shall, upon the expiration of the member's term, be eligible for reappointment and shall serve until a successor is appointed. In the event a member resigns or becomes ineligible for service during the member's term, a successor shall be appointed by the appropriate appointing authority to serve the remainder of the term.
(3) No employer shall discriminate in any manner against an employee who serves on the advisory council because of the employee's service. Employees who serve on the advisory council shall not be denied any benefit from their employer because of the employee's service. Travel expenses of the employee representatives on the council shall be reimbursed pursuant to subsection (b); however, employers may choose to pay the travel expenses of their employees' service on the advisory council according to their own policies.
(b)(1) Notwithstanding § 3-6-304 or any other law to the contrary, and in addition to all other requirements for membership on the council:
(A) Any person registered as a lobbyist pursuant to the registration requirements of title 3, chapter 6 who is subsequently appointed or otherwise named as a member of the council shall terminate all employment and business association as a lobbyist with any entity whose business endeavors or professional activities are regulated by the council, prior to serving as a member of the council. This subdivision (b)(1)(A) shall apply to all persons appointed or otherwise named to the council after July 1, 2010;
(B) No person who is a member of the council shall be permitted to register or otherwise serve as a lobbyist pursuant to title 3, chapter 6 for any entity whose business endeavors or professional activities are regulated by the council during such person's period of service as a member of the council. This subdivision (b)(1)(B) shall apply to all persons appointed or otherwise named to the council after July 1, 2010, and to all persons serving on the council on such date who are not registered as lobbyists; and
(C) No person who serves as a member of the council shall be employed as a lobbyist by any entity whose business endeavors or professional activities are regulated by the council for one (1) year following the date such person's service on the council ends. This subdivision (b)(1)(C) shall apply to persons serving on the council as of July 1, 2010, and to persons appointed to the council subsequent to such date.
(2) A person who violates this subsection (b) shall be subject to the penalties prescribed in title 3, chapter 6.
(3) The bureau of ethics and campaign finance is authorized to promulgate rules and regulations to effectuate the purposes of this subsection (b). All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, and in accordance with the procedure for initiating and proposing rules by the ethics commission to the bureau of ethics and campaign finance as prescribed in § 4-55-103.
(c) In addition to all other requirements for membership on the council, all persons appointed or otherwise named to serve as members of the council after July 1, 2010, shall be residents of this state.
(d) Members of the council shall not be paid but may be reimbursed for travel expenses. All reimbursement for travel expenses shall be in accordance with the comprehensive travel regulations promulgated by the department of finance and administration and approved by the attorney general and reporter.
(e) The council shall meet at least twice each year. It shall annually review workers' compensation in the state and shall issue a report of its findings and conclusions on or before July 1 of each year. The annual report shall be sent to the governor, the speakers of the house of representatives and the senate, the chair and vice-chair of the special joint committee on workers' compensation, the commissioner of labor and workforce development, the commissioner of commerce and insurance and the clerks of the house of representatives and senate. Notice of the publication of the annual report and all other reports published by the council shall be provided to all members of the general assembly pursuant to § 3-1-114.
(f) In performing its responsibilities, the council's role shall be strictly advisory, but it may:
(1) Make recommendations to the governor, the general assembly, the special joint committee on workers' compensation, the standing committees of each house that review the status of the workers' compensation system, the commissioner of labor and workforce development and the commissioner of commerce and insurance relating to the promulgation or adoption of legislation or rules;
(2) Make recommendations to the commissioner of labor and workforce development and the commissioner of commerce and insurance regarding the method and form of statistical data collections; and
(3) Monitor the performance of the workers' compensation system in the implementation of legislative directives.
(g) The chair, in consultation with the voting members of the council, is authorized to retain staff and professional assistance, such as consultants and actuaries, as the chair deems necessary for the work of the council, subject to budgetary approval in the general appropriations act. For administrative purposes, the council shall be attached to the department of treasury for all administrative matters relating to receipts, disbursements, expense accounts, budget, audit and other related items. The state treasurer shall have administrative and supervisory control over the staff assigned to assist the council. Employees of the council shall not have the status of preferred service employees pursuant to title 8. The autonomy of the council and its authority are not affected by this subsection (g).
(h) The council may develop evaluations, statistical reports and other information from which the general assembly may evaluate the impact of the legislative changes to workers' compensation law, including, but not limited to, the Reform Act of 2004 and subsequent statutory changes to this chapter.
(i) The advisory council shall issue an annual report that includes a summary of significant supreme court decisions relating to workers' compensation, including an explanation of their impact on existing policy. The report shall be due on or before January 15 of each year and shall include, to the extent possible, the decisions that were issued during the preceding calendar year. This annual report shall be sent to the governor, the speaker of the house of representatives, the speaker of the senate, the chair of the consumer and human resources committee of the house of representatives, the chair of the commerce and labor committee of the senate, and the chair and co-chair of the special joint committee on workers' compensation. Notice of the publication of the report shall be provided to all members of the general assembly pursuant to § 3-1-114.
(j) The advisory council on workers' compensation shall, within ten (10) business days of each meeting it conducts, provide a summary of the meeting and a report of all actions taken and all actions recommended to be taken to each member of the consumer and human resources committee of the house of representatives and the commerce and labor committee of the senate.
(k) Whenever any bill is introduced in the general assembly proposing to amend this chapter or to make any change in workers' compensation law, or to make any change in the law that may have a financial or other substantive impact on the administration of workers' compensation law, the standing committee to which the bill is referred may refer the bill to the council. The council's review of bills relating to workers' compensation should include, but not be limited to, bills that propose to amend chapters 3, 6, 7, and 9 of this title, and title 56, chapters 5 and 47. All bills referred to the council shall be reported back to the standing committee to which they were assigned as quickly as reasonably possible. Notwithstanding the absence of a report from the council, the standing committee is free to consider the bill at any time. The chair making the referral shall immediately notify the prime sponsors of the referral and the council shall not review and comment on the proposed legislation until the prime sponsors have been notified. The comments of the council shall describe the potential effects of the proposed legislation on the workers' compensation system and its operations and any other information or suggestions that the council may think helpful to the sponsors, the standing committees or the general assembly. The comments of the council may include recommendations for or against passage of the proposed legislation. Other than reporting the recommendations for or against passage of proposed legislation and responding to any questions that the legislators may have, no staff of the advisory council shall lobby or advocate for or against passage of proposed legislation.
(l) The council shall study and report on the occupational health and safety of employment in Tennessee and make recommendations for safe employment education and training and promote the development of employer-sponsored health and safety programs.
1992 Pub.Acts, c. 900, § 4;1996 Pub.Acts, c. 944, § 4, eff. May 13, 1996; 1996 Pub.Acts, c. 944, §§ 5 to 7, eff. July 1, 1996; 1997 Pub.Acts, c. 235, §§ 1, 2; 1997 Pub.Acts, c. 533, § 49, eff. June 19, 1997; 1998 Pub.Acts, c. 1024, §§ 13, 20, eff. July 1, 1998; 1999 Pub.Acts, c. 520, § 41, eff. June 17, 1999; 2000 Pub.Acts, c. 852, § 3, eff. May 31, 2000; 2001 Pub.Acts c. 192, §§ 11, 12, eff. July 1, 2001; 2002 Pub.Acts, c. 695, §§ 1, 2, 6, eff. May 1, 2002; 2003 Pub.Acts, c. 359, § 1, eff. June 17, 2003; 2004 Pub.Acts, c. 962, §§ 26, 27, 30, 43, 45; 2005 Pub.Acts, c. 390, § 3, eff. June 9, 2005; 2006 Pub.Acts, c. 645, §§ 1 to 3, eff. May 12, 2006; 2008 Pub.Acts, c. 1183, §§ 9, 11, eff. June 19, 2008; 2009 Pub.Acts, c. 463, §§ 1 to 3, eff. June 23, 2009; 2010 Pub.Acts, c. 1087, § 3, eff. July 1, 2010; 2011 Pub.Acts, c. 410, § 10(a), eff. July 1, 2011; 2012 Pub.Acts, c. 622, § 3, eff. March 23, 2012; 2012 Pub.Acts, c. 800, § 49;2013 Pub.Acts, c. 236, § 29, eff. April 19, 2013.
(a)(1) It is the intent of the general assembly that quality medical care services shall be available to injured and disabled employees. It is also the legislative intent to control increasing medical costs in workers' compensation matters by establishing cost control mechanisms to ensure cost-effective delivery of medical care services by employing a program of medical case management and a program to review the utilization and quality of medical care services.
(2) In order to assure that in workers' compensation cases quality medical care is rendered and to control medical care costs, an employer is authorized to use, but is not required to use, health maintenance organizations (HMOs) and preferred provider organizations (PPOs). An HMO or PPO may contract with medical care providers as permitted by law. The contracts are authorized to use, but are not limited to the use of, the following managed care methodologies:
(A) Medical bill review;
(B) Establishment of medical practice guidelines;
(C) Case management, subject to § 50-6-123;
(D) Utilization review, subject to § 50-6-124; and
(E) Peer review programs.
(3) Section 50-6-204(a)(4), relative to medical care, shall apply to any managed care methodology employed pursuant to this section. For the purposes of § 50-6-204(a)(4), physicians and surgeons in the same HMO or PPO are considered to be associated in practice together if they share a common employer for purposes of their clinical practice, or are associated together in a group practice.
(b) A health care provider shall not pursue a private claim against a workers' compensation claimant for all or part of the costs of health care services provided to the claimant by the provider unless:
(1) The injury is finally adjudicated not to be compensable under this chapter;
(2) The physician or surgeon, as provided in § 50-6-204, who was not authorized by the employer at the time the services were rendered, knew that the physician or surgeon was not an authorized physician or surgeon; or
(3) The employee knew that the physician or surgeon was not an authorized physician or surgeon; provided, that subdivision (b)(2) and this subdivision (b)(3) do not apply to emergency care.
(c) A health care provider shall not employ a collection agency or make a report to a credit bureau concerning a private claim against an employer for all or part of the costs of medical care provided to an employee that are not paid by the employer's workers' compensation insurer without having first exhausted all administrative remedies as provided by § 50-6-226(a)(4). The medical director may include the insurer in the administrative process.
1992 Pub.Acts, c. 900, § 6;1996 Pub.Acts, c. 944, §§ 8, 10, eff. July 1, 1996.
(a) The commissioner shall establish, pursuant to the commissioner's rule and regulation-making authority, a system of case management for coordinating the medical care services provided to employees claiming benefits under this chapter.
(b) Employers may, at their own expense, utilize case management, and, if utilized, the employee shall cooperate with the case management. Case management shall include, but not be limited to:
(1) Developing a treatment plan to provide appropriate medical care services to an injured or disabled employee;
(2) Systematically monitoring the treatment rendered and the medical progress of the injured or disabled employee;
(3) Assessing whether alternate medical care services are appropriate and delivered in a cost-effective manner based on acceptable medical standards;
(4) Ensuring that the injured or disabled employee is following the prescribed medical care plan; and
(5) Formulating a plan for return to work with due regard for the employee's recovery and restrictions and limitations, if any.
(c) The commissioner may contract with an independent organization, not owned by or affiliated with any carrier authorized to write workers' compensation insurance in the state, to assist with the administration of this section.
(d) Nothing in this section shall prevent an employer from establishing its own program of case management that meets the guidelines promulgated by the commissioner in rules and regulations.
(e) Medical care, treatment, therapy or services provided at the employee's residence pursuant to this chapter, shall not be considered home health services as defined in § 68-11-201 when provided pursuant to direction of the employee's attending physician in the following specific circumstances only:
(1) By a licensed health care provider who routinely provides services to employees at the place of employment, if the services rendered by the provider at the employee's residence are of the same type rendered by the provider at the place of employment; or
(2) By a licensed physical therapist, occupational therapist or speech therapist practicing independently of a home health agency, when the employee's attending physician determines that it is in the best interest of the employee to be treated by the independent therapist because of the therapist's expertise in workplace injuries.
1992 Pub.Acts, c. 900, § 7;1996 Pub.Acts, c. 944, § 9, eff. July 1, 1996; 2001 Pub.Acts, c. 148, § 1, eff. May 3, 2001; 2004 Pub.Acts, c. 962, §§ 28, 29.
(a) The commissioner of labor and workforce development shall establish a system of utilization review of selected outpatient and inpatient health care providers to employees claiming benefits under this chapter, by providers qualified pursuant to law or the utilization review accreditation commission.
(b) The commissioner shall also establish a system of pre-admission review of all hospital admissions, except for emergency services; however, utilization review pursuant to subsection (a) and this subsection (b) shall begin within one (1) working day of all emergency hospital admissions.
(c) Pursuant to the commissioner's established system of utilization review, the commissioner may contract with an independent utilization review organization, not owned by or affiliated with any carrier authorized to write workers' compensation insurance in the state, to provide utilization review, including peer review.
(d) Nothing in this section shall prevent an employer from electing to provide utilization review; however, if the employee, provider or any other party not contractually bound to the employer's utilization review program disagrees with that employer's utilization review, then that employee, provider or other party shall have recourse to the commissioner's utilization review program, as provided for in this section.
(e) Pursuant to the utilization review conducted by the commissioner, including providing an opportunity for a hearing, any health care provider who is found by the commissioner to have rendered excessive or inappropriate services may be subject to:
(1) A forfeiture of the right to payment for those services that are found to be excessive or inappropriate;
(2) A civil penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000); or
(3) A temporary or permanent suspension of the right to provide medical care services for workers' compensation claims if the health care provider has established a pattern of violations.
(f) It is the intent of the general assembly to ensure the availability of quality medical care services for injured and disabled employees and to manage medical costs in workers' compensation matters by eradicating prescription drug abuse through the employment of the system established by subsection (a) to review any healthcare provider prescribing one (1) or more Schedule II, III, or IV controlled substances for pain management to an injured or disabled employee for a period of time exceeding ninety (90) days from the initial prescription of such controlled substances.
1992 Pub.Acts, c. 900, § 8;1996 Pub.Acts, c. 944, § 11, eff. July 1, 1996; 1999 Pub.Acts, c. 520, § 41, eff. June 17, 1999; 2012 Pub.Acts, c. 1100, § 2, eff. July 1, 2012.
(a) The commissioner shall appoint a medical care and cost containment committee. The committee shall approve regulations pursuant to § 50-6-233(c)(7) before they become effective, assist the commissioner in their implementation, and advise the commissioner, at the commissioner's request, on issues relating to medical care and cost containment in the workers' compensation system.
(b)(1) The committee shall be composed of fifteen (15) voting members appointed by the commissioner as follows:
(A) Three (3) members shall be physicians licensed to practice medicine and surgery under title 63, chapter 6, and shall be appointed from a list of nominees submitted by the Tennessee Medical Association;
(B) Two (2) members shall represent employers and shall be appointed from a list of nominees submitted by the Tennessee Chamber of Commerce and Industry;
(C) One (1) member shall represent employers and shall be appointed from a list of nominees submitted by the Associated Builders and Contractors, Inc.;
(D) Three (3) members shall represent employees and shall be appointed from a list of nominees submitted by the Tennessee AFL-CIO State Labor Council;
(E) Three (3) members shall represent hospitals and shall be appointed from a list of nominees submitted by the Tennessee Hospital Association;
(F) One (1) member shall be a pharmacist and shall be appointed from a list submitted by the Tennessee Pharmacists Association;
(G) One (1) member shall represent the health insurance industry; and
(H) One (1) member shall be a chiropractor and shall be appointed from a list of nominees submitted by the Tennessee Chiropractic Association.
(2) The medical director shall serve as a nonvoting ex officio member of the committee.
(3) An organization that submits a list of nominees shall list at least three (3) nominees for each of the committee positions for which it is requested to submit nominations. If the commissioner finds a list of nominees unsatisfactory, the commissioner shall return the list to the submitting organization. The organization shall submit another list within thirty (30) days. This process shall continue until the commissioner appoints a member. If an organization that is required to submit a list of nominees fails to do so within thirty (30) days of a request for the list by the commissioner, then the commissioner may appoint a member of the commissioner's own choosing.
(4) In making appointments, the commissioner shall strive to achieve a geographic balance and, in the case of the physician members of the committee, shall assure to the extent possible that the membership of the committee reflects the diversity of specialties involved in the medical treatment and management of workers' compensation claimants.
(c) The members of the committee shall be appointed for terms of four (4) years. Each member of the committee shall, upon the expiration of such member's term, be eligible for reappointment and shall serve until a successor is appointed and qualified.
(d) Members of the committee shall serve without compensation but, when engaged in the conduct of their official duties as members of the committee, shall be entitled to reimbursement for travel expenses in accordance with uniform regulations promulgated by the department of finance and administration and approved by the attorney general and reporter.
1992 Pub.Acts, c. 900, § 9;1999 Pub.Acts, c. 520, § 41, eff. June 17, 1999; 2004 Pub.Acts, c. 962, § 33;2005 Pub.Acts, c. 105, §§ 1, 2, eff. May 4, 2005.
The commissioner shall appoint a medical director who shall be the executive secretary and a nonvoting ex officio member of the medical committee. The medical director shall be appointed from a list of three (3) nominees submitted by the Tennessee Medical Association. If the commissioner finds the list of three (3) nominees to be unsatisfactory, then the commissioner shall return the list to the Tennessee Medical Association and the association shall submit another list of nominees. This process shall be repeated, if necessary, until the commissioner selects a nominee to be medical director. The medical director may be a part-time employee, a full-time employee or a contract employee, and shall perform the following functions for which the medical director shall be responsible to the commissioner or medical care and cost containment committee, as appropriate:
(1) Institute administrative procedures that will enable the medical director to evaluate medical care to effect optimal treatment in workers' compensation cases;
(2) Inquire into instances where the medical treatment or the physical rehabilitation provided appears to be deficient or incomplete and recommend corrective action when indicated;
(3) Advise on the disposition of complaints of a physician's failure to furnish adequate medical care as required by this law or by rules and regulations adopted by the administrator, the disposition of complaints concerning other aspects of the medical management of a workers' compensation case or the failure to render required reports, and the disposition of complaints of any affected party as to unreasonable interference with the medical management of a workers' compensation case;
(4) Gather data and maintain records necessary to fulfill the medical director's responsibilities;
(5) Conduct studies and prepare and issue reports on the medical aspect of workers' compensation cases;
(6) Expedite the submission and processing of medical reports necessary to the processing of claims;
(7) Advise health care providers of their rights and responsibilities under this chapter and under any rules or regulations promulgated pursuant to this chapter;
(8) Advise the medical care and cost containment committee as to the reasonableness of fees for medical services in particular cases; and
(9) Undertake other functions that may be delegated to the medical director by the administrator.
1992 Pub.Acts, c. 900, § 10;1999 Pub.Acts, c. 520, § 41, eff. June 17, 1999.
(a) The commissioner, in consultation with the commissioner of commerce and insurance and appropriate law enforcement officials, shall implement a public awareness program concerning workers' compensation fraud.
(b) The division of workers' compensation shall investigate to determine whether any fraudulent conduct relating to workers' compensation is being practiced, and shall refer to an appropriate law enforcement agency any finding of fraud.
1992 Pub.Acts, c. 900, § 21;1996 Pub.Acts, c. 944, § 12, eff. July 1, 1996; 1999 Pub.Acts, c. 520, § 41, eff. June 17, 1999; 2000 Pub.Acts, c. 852, § 14, eff. May 31, 2000; 2003 Pub.Acts, c. 355, § 16, eff. June 16, 2003.
If any employer knowingly, willfully, and intentionally causes a medical or wage loss claim to be paid under health or sickness and accident insurance, or fails to provide reasonable and necessary medical treatment, including a failure to reimburse when the employer knew that the claim arose out of a compensable work-related injury and should have been submitted under its workers' compensation insurance coverage, then a civil penalty of five hundred dollars ($500) shall be assessed against the employer, and the employer may not offset any sickness and accident income benefit paid to the employee against its temporary total disability benefit payment liability due to the employee pursuant to this chapter. The commissioner of labor and workforce development has the authority to assess and collect the civil penalty.
1992 Pub.Acts, c. 900, § 24;2000 Pub.Acts, c. 734, § 1, eff. July 1, 2000.
Medical records provided to the division of workers' compensation in the course of its activities relative to benefit review conferences and the review of settlements pursuant to this chapter shall remain confidential and shall not be considered to be public records.
1996 Pub.Acts, c. 944, § 25, eff. July 1, 1996; 1999 Pub.Acts, c. 520, § 41, eff. June 17, 1999.
No later than December 31 of each year, the division of workers' compensation shall produce a report that includes a listing of the name of each covered employer that failed, during the preceding state fiscal year, to provide workers' compensation coverage or qualify as a self-insured employer as required by law. Only those employers whose failure resulted in periods of non-coverage shall be included within the report. The report shall also include the penalty assessed by the division and the payment status of the penalty. The report shall be provided to the advisory council on workers' compensation and the chairs of the commerce and labor committee of the senate and the consumer and human resources committee of the house of representatives.
1999 Pub.Acts, c. 217, § 1, eff. May 20, 1999; 2011 Pub.Acts, c. 410, § 10(b), eff. July 1, 2011; 2013 Pub.Acts, c. 236, § 30, eff. April 19, 2013.
It is the duty of the administrative office of the courts, in consultation with the advisory council on workers' compensation, to develop and provide appropriate continuing education programs on topics related to workers' compensation at each annual meeting. The continuing education shall include both generalized applications of this chapter and the use of the AMA Guides. The program shall also address any specific variances in the application of this chapter throughout the state.
The commissioner of commerce and insurance shall, on or before July 1, 2007, and annually thereafter through 2010, review the impact of Acts 2004, ch. 962 on premiums charged by insurers who provide workers' compensation coverage in this state. The commissioner of commerce and insurance is authorized to require the production of any information, documents, books or records from any person who is subject to regulation by the department that the commissioner deems necessary to implement this section.
(a) Every injured employee or the injured employee's representative shall, immediately upon the occurrence of an injury, or as soon thereafter as is reasonable and practicable, give or cause to be given to the employer who has no actual notice, written notice of the injury, and the employee shall not be entitled to physician's fees or to any compensation that may have accrued under this chapter, from the date of the accident to the giving of notice, unless it can be shown that the employer had actual knowledge of the accident. No compensation shall be payable under this chapter, unless the written notice is given the employer within thirty (30) days after the occurrence of the accident, unless reasonable excuse for failure to give the notice is made to the satisfaction of the tribunal to which the claim for compensation may be presented.
(b) In those cases where the injuries occur as the result of gradual or cumulative events or trauma, then the injured employee or the injured employee's representative shall provide notice of the injury to the employer within thirty (30) days after the employee:
(1) Knows or reasonably should know that the employee has suffered a work-related injury that has resulted in permanent physical impairment; or
(2) Is rendered unable to continue to perform the employee's normal work activities as the result of the work-related injury and the employee knows or reasonably should know that the injury was caused by work-related activities.
(c) Within thirty (30) calendar days of the notice of injury, the insurer, employer, or self-insured pool or trust shall file with the department, on a form prescribed by the department, a wage statement detailing the employee's wages for the previous fifty-two (52) weeks, unless the employer stipulates that the maximum weekly workers' compensation rate applies in the particular matter. In the event the insurer, employer, or self-insured pool or trust knowingly and intentionally fails to timely file the wage statement, a workers' compensation specialist may deem the employee's compensation rate to be the maximum workers' compensation rate effective on the date of injury. This subsection (c) shall apply only to accidents that result in death or personal injury of such a nature that the injured person either does not return to the person's employment within seven (7) days after the occurrence of the accident or has a permanent impairment resulting from the accident. If the employer, insurer or self-insured pool fails to file the wage statement within thirty (30) days and the maximum rate is imposed, then the employer, insurer or self-insured pool may file a wage statement at a later time. If the late filed wage statement reflects that the compensation rate is less than the maximum compensation rate, the employer, insurer or self-insured pool may then reduce the compensation rate.
1919 Pub.Acts, c. 123, § 22; impl. am. by 1980 Pub.Acts, c. 534, § 1; 1999 Pub.Acts, c. 520, § 41, eff. June 17, 1999; 2001 Pub.Acts, c. 219, § 1, eff. July 1, 2001; 2006 Pub.Acts, c. 1014, § 3, eff. June 27, 2006.
Formerly Shannon's Code Supp., § 3608a171; 1932 Code, § 6872; § 50-1001.
(a)(1) The notice required to be given of the occurrence of an accident to the employer shall state in plain and simple language the name and address of the employee, the time, place, and nature and cause of the accident resulting in injury or death, and shall be signed by the claimant or by some person on the claimant's behalf, or by any one (1) or more of the claimant's dependents if the accident resulted in death to the employee.
(2) No defect or inaccuracy in the notice shall be a bar to compensation, unless the employer can show to the satisfaction of the tribunal in which the matter is pending that the employer was prejudiced by the failure to give the proper notice, and then only to the extent of the prejudice.
(b) The notice shall be given personally to the employer or to the employer's agent or agents having charge of the business in working at which the injury was sustained by the employee.
1919 Pub.Acts, c. 123, § 23.
Formerly Shannon's Code Supp., § 3608a172; 1932 Code, § 6873; § 50-1002.
(a)(1) No claim for compensation under this chapter shall be filed with a court having jurisdiction to hear workers' compensation matters, as provided in § 50-6-225, until the parties have exhausted the benefit review conference process provided by the division of workers' compensation.
(2) Notwithstanding this section, if the parties have mutually agreed to a compromise and settlement of a claim for workers' compensation, the parties shall not be required to exhaust the benefit review conference process before filing a claim and submitting the compromise and settlement to the appropriate court for approval pursuant to § 50-6-206(a) or to the commissioner or the commissioner's designee pursuant to § 50-6-206(c). If the settlement is not approved, the parties shall then exhaust the benefit review conference process.
(b)(1) In those instances where the employer has not paid workers' compensation benefits to or on behalf of the employee, the right to compensation under this chapter shall be forever barred, unless the notice required by § 50-6-202 is given to the employer and a benefit review conference is requested on a form prescribed by the commissioner and filed with the division within one (1) year after the accident resulting in injury.
(2) In those instances where the employer has paid workers' compensation benefits, either voluntarily or as a result of an order to do so, within one (1) year following the accident resulting in injury, the right to compensation is forever barred, unless a form prescribed by the commissioner requesting a benefit review conference is filed with the division within one (1) year from the latter of the date of the last authorized treatment or the time the employer ceased to make payments of compensation to or on behalf of the employee.
(c) For purposes of this section, the issuing date of the last payment of compensation by the employer, not the date of its receipt, shall constitute the time the employer ceased making payments and an employer or its insurer shall provide the date on request.
(d) In case of physical or mental incapacity, other than minority, of the injured person or the injured person's dependents to perform or cause to be performed any action required within the time specified in this section, then the period of limitation in the case shall be extended for one (1) year from the date when the incapacity ceases.
(e)(1) Unless a claim for death benefits is settled or voluntarily paid, the dependent or dependents of a deceased employee shall request a benefit review conference within one (1) year of the date of death of the employee.
(2) In the event the deceased employee was a native of a foreign country and leaves no known dependent or dependents within the United States, it shall be the duty of the commissioner to give written notice forthwith of the death to the duly accredited consular officer of the country of which the beneficiaries are citizens.
(f) In the event the employee fails to appear and participate in the benefit review conference as scheduled by the division, the commissioner shall have the authority to dismiss the employee's claim by sending a copy of the order of dismissal by certified mail with return receipt requested to the employee's last known address. The order of dismissal shall become final and the claim shall be forever barred, unless the employee contacts the department to schedule a benefit review conference and attends a benefit review conference within sixty (60) days of the date the order of dismissal is signed by the commissioner or the commissioner's designee.
(g)(1) If the parties are not able to reach a compromise and settlement of all issues at the benefit review conference held pursuant to this section, the parties shall have ninety (90) days, after the date a written agreement or a written report regarding the conference is filed with the commissioner pursuant to § 50-6-240, to file a complaint with a court of competent jurisdiction as provided in § 50-6-225. The division of workers' compensation shall maintain an official record of the date on which a written agreement or written report is filed with the commissioner and supply the information to the parties or the appropriate court upon request of either the parties or the court.
(2) Notwithstanding subdivision (g)(1), in no event shall an employee have less than the latter of:
(A) One (1) year from the date of the accident resulting in injury; or
(B) One (1) year from the latter of the date of the last authorized treatment or the time the employer ceased to make payments of compensation to or on behalf of the employee in which to file a complaint with a court of competent jurisdiction, as provided in § 50-6-225.
(h) In the event a workers' compensation's complaint is filed with a court of competent jurisdiction pursuant to this section by the employer or the employer's agent and the employer or agent files notice of non-suit of the action, either party shall have ninety (90) days from the date of the order of dismissal to institute an action for recovery of benefits under this chapter.
(i) Proceedings to obtain a judgment in the case of the failure of the employer for thirty (30) days to pay any compensation due under any settlement or determination shall be filed within one (1) year after the default.
1919 Pub.Acts, c. 123, § 24; 1947 Pub.Acts, c. 139, § 4; impl. am. by 1980 Pub.Acts, c. 534, § 1; 1996 Pub.Acts, c. 944, § 13, eff. July 1, 1996; 1998 Pub.Acts, c. 1024, §§ 1, 2, eff. July 1, 1998; 1999 Pub.Acts, c. 520, § 41, eff. June 17, 1999; 2004 Pub.Acts, c. 962, § 14;2005 Pub.Acts, c. 390, §§ 5, 6, eff. June 9, 2005; 2008 Pub.Acts, c. 1183, § 10, eff. June 19, 2008.
Formerly Shannon's Code Supp., § 3608a173; 1932 Code, § 6874; 1950 Code Supp., § 6874; § 50-1003.
(a)(1)(A) The employer or the employer's agent shall furnish, free of charge to the employee, such medical and surgical treatment, medicine, medical and surgical supplies, crutches, artificial members, and other reasonable and necessary apparatus, including prescription eyeglasses and eye wear, such nursing services or psychological services as ordered by the attending physician and hospitalization, including such dental work made reasonably necessary by accident as defined in this chapter.
(B) No medical provider shall charge more than ten dollars ($10.00) for the first twenty (20) pages or less, and twenty-five cents (25¢) per page for each page after the first twenty (20) pages, for any medical reports, medical records or documents pertaining to medical treatment or hospitalization of the employee that are furnished pursuant to this subsection (a).
(2)(A) 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. Notwithstanding any law to the contrary, there shall be no implied covenant of confidentiality, prohibition against ex parte communications or privacy of medical records in the custody of authorized treating physicians with respect to case managers, employers, or insurance companies, or their attorneys, if these persons comply with subdivision (a)(2)(C); provided, however, that the employee, or the employee's attorney, shall be provided copies, no later than ten (10) days in advance of a deposition of the authorized treating physician taken for any purpose or the appearance of the authorized treating physician for testimony, of any and all written memorandum or visual or recorded materials, including e-mails or other written materials:
(i) Provided to the employee's authorized treating physician by case managers, employers, insurance companies, or their attorneys; or
(ii) Received from the employee's authorized treating physician.
(B) For purposes of subdivision (a)(2)(C), “employer” means the employer, the employer's attorney, the employer's insurance carrier or third party administrator, a case manager as authorized by § 50-6-123, or any utilization review agent as authorized by § 50-6-124 during the employee's treatment for the claimed workers' compensation injury.
(C) To facilitate the timely resolution of workers' compensation claims and to facilitate the use of the benefit review process established by this chapter, there shall be reasonable access to any employee's medical information only by compliance with the following:
(i) An employee claiming workers' compensation benefits shall provide the employer or the division of workers' compensation with a signed, written medical authorization form as prescribed by the commissioner; provided, the form shall:
(a) Be addressed to a specific medical provider authorized by the employer pursuant to this section;
(b) Permit the release of information through communication, either orally or in writing, as authorized under this subdivision (a)(2)(C); and
(c) Plainly state in capitalized lettering on the face of the document the following language:
THIS MEDICAL AUTHORIZATION FORM ONLY PERMITS THE EMPLOYER OR THE DIVISION OF WORKERS' COMPENSATION TO OBTAIN MEDICAL INFORMATION THROUGH ORAL OR WRITTEN COMMUNICATION, INCLUDING, BUT NOT LIMITED TO, CHARTS, FILES, RECORDS, AND REPORTS IN THE POSSESSION OF A MEDICAL PROVIDER AUTHORIZED BY THE EMPLOYER PURSUANT TO T.C.A. § 50-6-204 AND A MEDICAL PROVIDER THAT IS REIMBURSED BY THE EMPLOYER FOR THE EMPLOYEE'S TREATMENT;
(ii) An employee claiming workers' compensation benefits, or the employee's attorney, shall be entitled to obtain medical information, records, opinions, or reports from, or communicate in writing or in person with, any medical provider who has treated or provided medical care to the employee; provided, that the employee executes and provides the medical provider with a properly completed form as described in subdivision (a)(2)(C)(i).
(iii) Any medical provider authorized by the employer pursuant to this section and who has treated or provided medical care to an employee claiming workers' compensation benefits is permitted to communicate, orally or in writing, with the employer, or the employer's attorney, and shall honor any request by the employer for medical information, medical records, professional opinions, or medical reports pertaining to the claimed workers' compensation injury. Oral communication may be utilized, and includes, but is not limited to, a telephone conversation or an in-person meeting.
(iv) If an employee or employer files a request for assistance with the department, requesting the department to make a determination as to whether the claim is compensable or concerning an issue related to medical benefits or temporary disability benefits, the department may request, orally or in writing, medical information, records, opinions, or reports from the medical provider; provided, that:
(a) Any response by the medical provider to the department's request shall be in writing; and
(b) If the department receives documents or written responses to any request for information pursuant to this subdivision (a)(2)(C)(iv), then the department shall notify the employee, the employer and any attorney representing the employee or employer within fourteen (14) days of receipt of the document or written response that such persons may review or copy the documents or responses; provided, that the requesting party shall pay the copying fee authorized by subdivision (a)(1)(B) prior to the department providing the requested copies; and
(v) If the department becomes involved in the appeal of a utilization review issue, then the department is authorized to communicate with the medical provider involved in the dispute either orally or in writing to permit the timely resolution of the issue and shall notify the employee, employer or any attorney representing the employee or employer that they may review or copy the documents or responses; provided, that the requesting party shall pay the copying fee authorized by subdivision (a)(1)(B) prior to the department providing the requested copies.
(D) No relevant information developed in connection with authorized medical treatment or an examination provided pursuant to this section for which compensation is sought by the employee shall be considered a privileged communication, and no medical provider shall incur any liability as a result of providing medical information, records, opinions, or reports as described in subdivision (a)(2)(C); provided, that the medical provider complies with subdivision (a)(2)(C).
(3) Whenever it appears that the amount of medical benefits to which the employee may be entitled under this section will exceed the amount of five thousand dollars ($5,000), the insurer shall file written notice with the division of workers' compensation, which shall, upon receipt of the notice, notify the employer that the claim for medical benefits for the employee will exceed five thousand dollars ($5,000).
(4)(A) The injured employee shall accept the medical benefits afforded under this section; provided, that, except as provided in subdivision (a)(4)(B) or (a)(4)(C), the employer shall designate a group of three (3) or more reputable physicians or surgeons not associated together in practice, if available in that community, from which the injured employee shall have the privilege of selecting the operating surgeon and the attending physician; and provided, further, that the liability of the employer for the services rendered the employee shall be limited to the charges that are established in the applicable medical fee schedule adopted pursuant to this section.
(B) If the injury is a back injury, then the group of three (3) or more physicians or surgeons required to be designated pursuant to subdivision (a)(4)(A) shall be expanded to four (4), one (1) of whom must be a doctor of chiropractic; provided, that no more than twelve (12) visits to the doctor of chiropractic shall be approved per back injury, except upon the approval of the employer. The provisions of this subdivision (a)(4)(B) shall not apply to state or local government employees and shall not apply to workers' compensation self-insurer pools established pursuant to § 50-6-405(c)(1).
(C) If the injury or illness requires the treatment of a physician or surgeon who practices orthopedic or neuroscience medicine, then the employer may appoint a panel of physicians or surgeons practicing orthopedic or neuroscience medicine required to be designated pursuant to subdivision (a)(4)(A) consisting of five (5) physicians, with no more than four (4) physicians affiliated in practice.
(D) In circumstances where an employee is offered a treating panel as described in subdivision (a)(4)(C), the injured employee shall be entitled to have a second opinion on the issue of surgery, impairment, and a diagnosis from that same panel of physicians selected by the employer.
(E) The employer shall provide the applicable panel of physicians to the employee in writing on a form prescribed by the division, and the employee shall document in writing the physician the employee has selected and the employee shall sign and date the prescribed form. The employer shall provide a copy of the completed form to the employee and shall maintain a copy of the completed form in the records of the employer and shall produce a copy of the completed form upon request by the division.
(5) All cases of dispute as to the value of the services shall be determined by the tribunal having jurisdiction of the claim of the injured employee for compensation. The tribunal may also deny payment of physicians' fees and hospital charges for failure to submit the reports as required in this section.
(6)(A) When an injured worker is required by the worker's employer to travel to an authorized medical provider or facility located outside a radius of fifteen (15) miles from the insured worker's residence or workplace, then, upon request, the employee shall be reimbursed for reasonable travel expenses. The injured employee's travel reimbursement shall be calculated based on a per mile reimbursement rate, as defined in subdivision (a)(6)(B), times the total round trip mileage as measured from the employee's residence or workplace to the location of the medical provider's facility. The definition of community as contemplated by this subdivision (a)(6)(A) shall apply only for the purposes of this section.
(B) The per mile reimbursement rate for the injured employee shall be no less than the mileage allowance authorized for state employees who have been authorized to use personally owned vehicles in the performance of their duties. This minimum per mile reimbursement rate shall be based on the last published comprehensive travel regulations promulgated by the department of finance and administration.
(b)(1) Where the nature of the injury or occupational disease, as defined in § 50-6-102, is such that it does not disable the employee but reasonably requires medical, surgical, psychological or dental treatment or care, medicine, surgery, dental and psychological treatment, medicine, medical and surgical supplies, crutches, artificial members, and other apparatus shall be furnished by the employer.
(2) In addition to any attorney fees provided for pursuant to § 50-6-226, a court may award attorney fees and reasonable costs to include reasonable and necessary court reporter expenses and expert witness fees for depositions and trials incurred when the employer fails to furnish appropriate medical, surgical and dental treatment or care, medicine, medical and surgical supplies, crutches, artificial members and other apparatus to an employee provided for pursuant to a settlement or judgment under this chapter.
(c) In case death results from the injury or occupational disease, as defined in § 50-6-102, the employer shall, in addition to the medical services, etc., referred to in subsections (a) and (b), pay the burial expenses of the deceased employee, not exceeding seven thousand five hundred dollars ($7,500). If the deceased employee leaves no dependents entitled to compensation under this chapter, the employer shall pay to the employee's estate the additional benefits provided in § 50-6-209(b)(2) and (3), and shall also be liable for the medical and hospital services and burial expenses provided for in this section.
(d)(1) The injured employee must submit to examination by the employer's physician at all reasonable times if requested to do so by the employer, but the employee shall have the right to have the employee's own physician present at the examination, in which case the employee shall be liable to the employee's physician for that physician's services.
(2) Any medical report submitted to the employer based upon the examination, or a true copy of the report, shall be furnished by the employer to the employee upon request; provided, that the employer may, in the employer's discretion, furnish the report to the attorney for the employee or to a member of the employee's family.
(3)(A) To provide uniformity and fairness for all parties in determining the degree of anatomical impairment sustained by the employee, a physician, chiropractor or medical practitioner who is permitted to give expert testimony in a Tennessee court of law and who has provided medical treatment to an employee or who has examined or evaluated an employee seeking workers' compensation benefits shall utilize the applicable edition of the AMA Guides as established in § 50-6-102 or, in cases not covered by the AMA Guides, an impairment rating by any appropriate method used and accepted by the medical community.
(B) No anatomical impairment or impairment rating, whether contained in a medical record, medical report, including a medical report pursuant to § 50-6-235(c), deposition or oral expert opinion testimony shall be accepted during a benefit review conference or be admissible into evidence at the trial of a workers' compensation matter unless the impairment is based on the applicable edition of the AMA Guides or, in cases not covered by the AMA Guides, an impairment rating by any appropriate method used and accepted by the medical community.
(C) In the event of a release of a new edition of the American Medical Association Guides to the Evaluation of Permanent Impairment, American Medical Association, other than the edition designated in § 50-6-102(2), the commissioner shall, within six (6) months of the release of the new edition, conduct an evaluation of the new edition and report the commissioner's findings and recommendations to the general assembly. The AMA guides, as defined in § 50-6-102, shall remain in effect until a new edition is designated by the general assembly.
(4) The employer shall pay for the services of the physician making the examination at the instance of the employer.
(5) When a dispute as to the degree of medical impairment exists, either party may request an independent medical examiner from the commissioner's registry. If the parties are unable to mutually agree on the selection of an independent medical examiner from the commissioner's registry, it shall be the responsibility of the employer to provide a written request to the commissioner for assignment of an independent medical examiner with a copy of the notice provided to the other party. Upon receipt of the written request, the commissioner shall provide the names of three (3) independent medical examiners chosen at random from the registry. No physician may serve as an independent medical examiner in a case and serve on any panel of providers selected under this section for the employer involved in such case. The commissioner shall immediately notify the parties by facsimile or e-mail when the list of independent medical examiners has been assigned to a matter, but in any event the notification shall be made within five (5) business days of the date of the request. The employer may strike one (1) name from the list, with the rejection made and communicated to the other party by facsimile or e-mail no later than the third business day after the date on which notification of the list is provided. The employee shall select a physician to perform the independent medical examination from the remaining physicians on the list. All costs and fees for an independent medical examination and report made pursuant to this subdivision (d)(5) shall be paid by the employer. The written opinion as to the permanent impairment rating given by the independent medical examiner pursuant to this subdivision (d)(5) shall be presumed to be the accurate impairment rating; provided, however, that this presumption may be rebutted by clear and convincing evidence to the contrary.
(6) The commissioner shall establish by rule, in accordance with the provisions of the Uniform Administrative Procedures Act, compiled title 4, chapter 5, an independent medical examiners registry. The commissioner shall establish qualifications for the independent medical examiners, including continuing education and peer review requirements, with the advice of the Tennessee Medical Association and the advisory council on workers' compensation, established by § 50-6-121. The rules established shall include, but not be limited to, qualifications and procedures for submission of an application for inclusion on the registry, procedures for the review and maintenance of the registry, and procedures for assignment that ensures that the composition of the panels is random.
(7) Whenever the nature of the injury is such that specialized medical attention is required or indicated and the specialized medical attention is not available in the community in which the injured employee resides, the injured employee can be required to go, at the request of and at the expense of the employer, to the nearest location at which the specialized medical attention is available.
(8) If the injured employee refuses to comply with any reasonable request for examination or to accept the medical or specialized medical services that the employer is required to furnish under this chapter, the injured employee's right to compensation shall be suspended and no compensation shall be due and payable while the injured employee continues to refuse.
(9) For accidents or injuries occurring on or after July 1, 2005, in case of a dispute as to the injury, other than disputes as to the degree of medical impairment, the court may, at the instance of either party or on its own motion, appoint a neutral physician of good standing and ability to make an examination of the injured person and report the physician's findings to the court, the expense of which examination shall be borne equally by the parties.
(e) In all death claims where the cause of death is obscure or is disputed, any interested party may require an autopsy, the cost of which is to be borne by the party demanding the autopsy.
(f) Any physician whose services are furnished or paid for by the employer and who treats or makes or is present at any examination of an injured employee may be required to testify as to any knowledge acquired by the physician in the course of the treatment or examination as the treatment or examination relates to the injury or disability arising therefrom.
(g)(1) If an emergency, or on account of the employer's failure or refusal to provide the medical care and services required by this law, the injured employee or the injured employee's dependents may provide the medical care and services, and the cost of the medical care and services, not exceeding three hundred dollars ($300), shall be borne by the employer; provided, that the pecuniary liability of the employer shall be limited to the charges for the service that prevail in the community where the services are rendered.
(2)(A) If an employer denies it is required to provide or refuses to provide medical care and treatment, medical services or medical benefits, or both, that an employee contends should be provided as a result of a judgment or decree entered by a court following a workers' compensation trial or as a result of a workers' compensation settlement agreement approved by a court or by the commissioner or the commissioner's designee pursuant to § 50-6-206, either the employee or the employer, or the attorney for the employee or employer, may request the assistance of a workers' compensation specialist to determine whether such medical care and treatment, medical services or medical benefits, or both, are appropriate by filing with the division a form prescribed for that purpose by the commissioner.
(B) A workers' compensation specialist shall have the authority to determine whether it is appropriate to order the employer or the employer's insurer to provide specific medical care and treatment, medical services or medical benefits, or both, to the employee pursuant to a judgment or decree entered by a court following a workers' compensation trial or pursuant to a workers' compensation settlement agreement approved by a court or by the commissioner or the commissioner's designee pursuant to § 50-6-206. The specialist's authority shall include, but is not limited to, the authority to order specific medical care and treatment, medical services or medical benefits, or both, and any authority granted to a specialist by § 50-6-238(a)(3). The specialist's authority shall also include any authority granted to a court by subdivision (b)(2), to award attorney fees and reasonable costs that include reasonable and necessary court reporter expenses and expert witness fees for depositions.
(C) Upon receipt of the request for assistance, the specialist shall review the available information and then, after such review, enter an order, on a form prescribed by the commissioner, in accord with the following:
(i) If the employer, or the employer's insurer, agrees it will provide medical care and treatment, medical services or medical benefits, or both, requested by the employee, the specialist shall issue an agreed order specifying the medical care and treatment to be provided by the employer and if the employer fails to comply with the agreed order, the specialist shall enter an order directing the employer or the employer's insurer to provide specific medical care and treatment; and
(ii) If the employer does not agree to provide the medical care and treatment at issue, the specialist shall enter an order as to whether the employer shall provide medical care and treatment, medical services or medical benefits, or both, to the employee, and if so, the specific medical care and treatment, medical services or medical benefits, or both, that shall be provided to the employee.
(D) If either the employee or the employer disagrees with the order entered by the specialist pursuant to subdivision (g)(2)(C)(ii), the following shall apply:
(i) If the request for assistance involved a request for medical care or treatment pursuant to a court judgment or decree following a trial of the underlying workers' compensation claim, then either the employer or the employee may appeal the specialist's order to the original court that issued the judgment or decree. The parties shall attach a copy of the specialist's order to any request for review that is filed in the original court; however, any review by the original court shall be de novo; and
(ii) If the request for assistance involved a request for medical care and treatment pursuant to a settlement approved by a court of competent jurisdiction or by the commissioner or the commissioner's designee pursuant to § 50-6-206, and either the employee or the employer disagrees with the order of the specialist, the aggrieved party may request administrative review pursuant to § 50-6-238(d) and all provisions of § 50-6-238(d) shall apply to the request. If administrative review is not requested, the order of the specialist shall be considered a final order for administrative purposes. If administrative review is requested, the order of the administrator or administrator's designee shall be considered a final order for administrative purposes, if not otherwise stated in the order.
(h) All psychological or psychiatric services available under subdivisions (a)(1) and (b)(1) shall be rendered only by psychologists or psychiatrists and shall be limited to those ordered upon the referral of physicians authorized under subdivision (a)(4).
(i)(1) The commissioner, in consultation with the medical care and cost containment committee and the advisory council on workers' compensation, is authorized to establish by rule, in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, a comprehensive medical fee schedule and a related system that includes, but is not limited to, procedures for review of charges, enforcement procedures and appeal hearings to implement the fee schedule. In developing the rules, the commissioner shall strive to assure the delivery of quality medical care in workers' compensation cases and access by injured workers to primary and specialist care while controlling prices and system costs. The medical care fee schedule shall be comprehensive in scope and shall address fees of physicians and surgeons, hospitals, prescription drugs, and ancillary services provided by other health care facilities and providers. The commissioner may consider any and all reimbursement systems and methodologies in developing the fee schedule, except that, in no event shall the fee schedule set forth differing rates for reimbursement or conversion factors for reimbursement of physical or occupational therapy services based or dependent on whether the services are performed in independently-owned facilities or physician-affiliated facilities, and shall not otherwise consider the physician ownership in the facility providing services. However, differing reimbursement rates may be implemented by the commissioner upon the department's presentation of state data demonstrating there is a need for differing reimbursement rates for physical/occupational therapy services and upon the department's holding a public hearing on the issue.
(2) The commissioner is authorized to retain experts to assist in the development of the fee schedule and related system in accordance with the contracting rules of the department of finance and administration.
(3) The commissioner, in consultation with the medical care and cost containment committee and the advisory council on workers' compensation, shall review the fee schedules adopted pursuant to this section on an annual basis and when appropriate the commissioner shall revise the fee schedules as necessary. It is the intent of the general assembly that this annual review consider, among other factors, the medical consumer price index.
(4)(A) The comprehensive medical fee schedule adopted pursuant to this subsection (i) is not intended to prohibit an employer, trust or pool, or insurer from negotiating lower fees in its own medical fee agreements.
(B) Deleted by 2010 Pub.Acts, c. 792, § 1, eff. Jan. 1, 2011.
(C) Deleted by 2010 Pub.Acts, c. 792, § 1, eff. Jan. 1, 2011.
(D) Deleted by 2010 Pub.Acts, c. 792, § 1, eff. Jan. 1, 2011.
(j)(1) If a treating physician determines that pain is persisting for an injured or disabled employee beyond an expected period for healing, the treating physician may either prescribe, if the physician is a qualified physician as defined in subdivision (j)(2)(B), or refer, such injured or disabled employee for pain management encompassing pharmacological, nonpharmacological and other approaches to manage chronic pain.
(2)(A) In the event that a treating physician refers an injured or disabled employee for pain management, the employee is entitled to a panel of qualified physicians as provided in subdivision (a)(4) except that, in light of the variation in availability of qualified pain management resources across the state, if the office of each qualified physician listed on the panel is located not more than one hundred seventy-five (175) miles from the injured or disabled employee's residence or place of employment, then the community requirement of subdivision (a)(4) shall not apply for the purposes of pain management.
(B) For the purposes of the panel required by subdivision (j)(2)(A), “qualified physician” means an individual licensed to practice medicine or osteopathy in this state and:
(i) Board certified in anesthesiology, neurological surgery, orthopedic surgery, radiology or physical medicine and rehabilitation through the:
(a) American Board of Medical Specialties (ABMS);
(b) American Osteopathic Association (AOA); or
(c) Another organization authorized by the commissioner;
(ii) Board certified by an organization listed in subdivision (j)(2)(B)(i)(a)-(c) in a specialty other than a specialty listed in subdivision (j)(2)(B)(i) and who has completed an ABMS or AOA subspecialty board in pain medicine, or completed an Accreditation Council for Graduate Medical Education (ACGMA) accredited pain fellowship; or
(iii) Serving as a clinical instructor in pain management at an accredited Tennessee medical training program.
(3) The injured or disabled employee is not entitled to a second opinion on the issue of impairment, diagnosis or prescribed treatment relating to pain management. However, on no more than one (1) occasion, if the injured or disabled employee submits a request in writing to the employer stating that the prescribed pain management fails to meet medically accepted standards, then the employer shall initiate and participate in utilization review as provided in this chapter for the limited purpose of determining whether the prescribed pain management meets medically accepted standards.
(4)(A) As a condition of receiving pain management that requires prescribing Schedule II, III, or IV controlled substances, the injured or disabled employee may sign a formal written agreement with the physician prescribing the Schedule II, III, or IV controlled substances acknowledging the conditions under which the injured or disabled employee may continue to be prescribed Schedule II, III, or IV controlled substances and agreeing to comply with such conditions.
(B) If the injured or disabled employee violates any of the conditions of the agreement on more than one (1) occasion, then:
(i) The employee's right to pain management through the prescription of Schedule II, III, or IV controlled substances under this chapter shall be terminated and the injured or disabled employee shall no longer be entitled under this chapter to the prescription of such substances for the management of pain;
(ii) For injuries occurring on or after July 1, 2012, the violation shall be deemed to be misconduct connected with the employee's employment for purposes of § 50-6-241(d); and
(iii) For injuries occurring on or after July 1, 2012, in the event such violation occurs prior to a finding that the injured or disabled employee is totally disabled as provided in § 50-6-207(4), through either a judgment or decree entered by a court following a workers' compensation trial or a settlement agreement approved pursuant to § 50-6-206, the incapacity to work due to lack of pain management shall not be considered when determining whether the injured employee is entitled to permanent total disability benefits as provided in § 50-6-207(4).
(C) A physician may disclose the employee's violation of the formal written agreement on the physician's own initiative. Upon request of the employer, a physician shall disclose the employee's violation of the formal written agreement as provided in this section.
(D) The formal written agreement shall include a notice to the employee in capitalized, conspicuous lettering on the face of the agreement the consequences for violating the terms of the agreement as provided for in this subsection (j).
(E)(i) If an employer terminates an injured or disabled employee's right under this chapter to pain management through the prescription of Schedule II, III, or IV controlled substances pursuant to alleged violations of the formal agreement as provided in subdivision (j)(4)(B), then the employee may either file a:
(a) Request for assistance pursuant to § 50-6-238, if the benefit review conference requirement has not been exhausted, and a workers' compensation specialist shall determine whether such violations occurred; or
(b) Petition in a court of proper jurisdiction as provided in § 50-6-225, if the benefit review conference requirement has been exhausted, for a determination of whether such violations occurred.
(ii) If an employer or insurer alleges that an injured or disabled employee is not entitled to reconsideration under § 50-6-241(d) or permanent total disability benefits as provided in § 50-6-207(4) because of the employee's alleged violations of the formal agreement as provided in subdivision (j)(4)(B), then a court shall also determine whether such violations occurred.
(5) Prescribing one (1) or more Schedule II, III, or IV controlled substances for pain management treatment of an injured or disabled employee for a period of time exceeding ninety (90) days from the initial prescription of any such controlled substances is considered to be medical care services for the purposes of utilization review as provided in this chapter. The department is authorized to impose a fee for the administration of an appeal process for utilization review under this subdivision (j)(5) and subdivision (j)(3).
1919 Pub.Acts, c. 123, § 25; 1941 Pub.Acts, c. 90, § 3; 1943 Pub.Acts, c. 117, § 1; 1949 Pub.Acts, c. 227, § 2; 1953 Pub.Acts, c. 111, § 1; 1957 Pub.Acts, c. 234, § 1; 1959 Pub.Acts, c. 62, § 1; 1959 Pub.Acts, c. 172, § 1; 1963 Pub.Acts, c. 362, § 3; 1967 Pub.Acts, c. 313, § 3; 1971 Pub.Acts, c. 134, § 3; 1973 Pub.Acts, c. 379, § 4; 1977 Pub.Acts, c. 417, § 1; 1978 Pub.Acts, c. 521, § 1; impl. am. by 1980 Pub.Acts, c. 534, § 1; 1980 Pub.Acts, c. 650, § 1; 1983 Pub.Acts, c. 194, § 1; 1983 Pub.Acts, c. 215, § 1; 1983 Pub.Acts, c. 276, § 1; 1984 Pub.Acts, c. 782, § 1; 1985 Pub.Acts, c. 393, § 3; 1986 Pub.Acts, c. 792, § 1; 1986 Pub.Acts, c. 809, § 1; 1988 Pub.Acts, c. 525, § 3; 1989 Pub.Acts, c. 210, § 1; 1989 Pub.Acts, c. 446, § 1; 1991 Pub.Acts, c. 255, § 1;1996 Pub.Acts, c. 790, § 1, eff. April 22, 1996; 1997 Pub.Acts, c. 198, § 1, eff. May 13, 1997; 1997 Pub.Acts, c. 259, § 1, eff. May 22, 1997; 1997 Pub.Acts, c. 533, § 2, eff. June 19, 1997; 1998 Pub.Acts, c. 1024, §§ 21, 22, eff. July 1, 1998; 1999 Pub.Acts, c. 225, § 1, eff. May 20, 1999; 1999 Pub.Acts, c. 294, §§ 2 to 5, eff. July 1, 1999; 1999 Pub.Acts, c. 520, § 41, eff. June 17, 1999; 2000 Pub.Acts, c. 990, § 1, 3;2001 Pub.Acts, c. 192, §§ 9, 10, eff. July 1, 2001; 2001 Pub.Acts, c. 246, § 1, eff. May 22, 2001; 2003 Pub.Acts, c. 359, § 2, eff. June 17, 2003; 2004 Pub.Acts, c. 433, § 1, eff. March 12, 2004; 2004 Pub.Acts, c. 962, §§ 1, 2, 5, 13, 24, 46; 2005 Pub.Acts, c. 7, § 1, eff. March 21, 2005; 2005 Pub.Acts, c. 107, §§ 1, 2, eff. May 4, 2005; 2005 Pub.Acts, c. 188, § 1, eff. May 19, 2005; 2006 Pub.Acts, c. 902, § 1, eff. June 20, 2006; 2007 Pub.Acts, c. 300, § 1, eff. May 30, 2007; 2007 Pub.Acts, c. 522, § 1, eff. June 26, 2007; 2007 Pub.Acts, c. 543, § 1, eff. July 1, 2007; 2008 Pub.Acts, c. 835, § 1, eff. July 1, 2008; 2008 Pub.Acts, c. 1025, § 2, eff. May 28, 2008; 2009 Pub.Acts, c. 486, § 1, eff. July 1, 2009; 2010 Pub.Acts, c. 792, § 1, eff. Jan. 1, 2011; 2010 Pub.Acts, c. 858, § 1, eff. April 30, 2010; 2011 Pub.Acts, c. 416, § 7, eff. June 6, 2011; 2012 Pub.Acts, c. 1100, § 3, eff. July 1, 2012.
Formerly Shannon's Code Supp., § 3608a174; 1932 Code, § 6875; 1950 Code Supp., § 6875; § 50-1004.
(a) No compensation shall be allowed for the first seven (7) days of disability resulting from the injury, excluding the day of injury, except the benefits provided for in § 50-6-204, but if disability extends beyond that period, compensation shall commence with the eighth day after the injury. In the event, however, that the disability from the injury exists for a period as long as fourteen (14) days, then compensation shall be allowed beginning with the first day after the injury.
(b)(1) The total amount of compensation payable under this part shall not exceed the maximum total benefit, as that benefit is defined in § 50-6-102, in any case, exclusive of travel reimbursement, medical, hospital and funeral benefits.
(2) Compensation shall be paid promptly. The first payment shall be due and payable within fifteen (15) days after the employer has knowledge of any disability or death, and thereafter compensation shall be paid to the employee or the employee's dependents semimonthly. Evidence of the initiation or denial of the compensation is inadmissible in a subsequent proceeding concerning the issue of the compensability of injury.
(3)(A) In addition to any other penalty provided by law, if an employer, trust or pool or an employer's insurer fails to pay, or untimely pays, temporary disability benefits within twenty (20) days after the employer has knowledge of any disability that would qualify for benefits under this chapter, a workers' compensation specialist shall have the authority to assess against the employer, trust or pool or the employer's insurer a civil penalty in addition to the temporary disability benefits that are due to the employee. The penalty, if assessed, shall be in an amount equal to twenty-five percent (25%) of the temporary disability benefits that were not paid in accordance with this subsection (b). Furthermore, the penalty may be assessed as to all temporary disability benefits that are determined not to be paid in compliance with this subsection (b).
(B) Prior to the assessment of any civil penalty, the specialist shall issue a written request to the employer or insurance carrier to provide documentation as to why the civil penalty should not be assessed.
(C) If the specialist determines the employer or insurer was not in compliance with this subsection (b), the specialist shall issue a written order that assesses the penalty in a specific dollar amount to be paid directly to the employee. If the employer or insurer fails to comply with the order within fifteen (15) calendar days of that order's becoming final, the employer or insurer shall be subject to penalties as set forth in § 50-6-238(d).
(D) In any civil action filed pursuant to this chapter, the court shall have the authority to assess penalties as provided in this subdivision (b)(3).
(c)(1) Upon making the first payment of benefits, and upon stopping or changing the benefits for any cause other than final settlement, or upon denying a claim after proper investigation, the employer's insurance carrier or the employer, if self-insured, shall immediately notify the administrator, on a form prescribed by the administrator, that the payment of income benefits has begun or has been stopped or changed.
(2) Failure to file the notice shall be a misdemeanor and shall, upon conviction, be punishable by a fine of not more than fifty dollars ($50.00).
(d)(1) If payments have been made without an award, and the employer subsequently elects to controvert the employer's liability, notice of controversy shall be filed with the administrator within fifteen (15) days of the due date of the first omitted payment.
(2) In such cases, the prior payment of compensation shall not be considered a binding determination of the obligations of the employer as to future compensation payments.
(3) Likewise, the acceptance of compensation by the employee shall not be considered a binding determination of the obligations of the employer as to future compensation payments; nor shall the acceptance of compensation by the employee be considered a binding determination of the employee's rights.
1919 Pub.Acts, c. 123, § 26; 1923 Pub.Acts, c. 84, § 3; 1941 Pub.Acts, c. 90, § 4; 1955 Pub.Acts, c. 182, § 1; 1963 Pub.Acts, c. 362, § 1; 1967 Pub.Acts, c. 313, § 2; 1969 Pub.Acts, c. 196, § 2; 1971 Pub.Acts, c. 134, § 2; 1972 Pub.Acts, c. 699, § 2; 1973 Pub.Acts, c. 379, § 5; 1974 Pub.Acts, c. 617, § 1; 1975 Pub.Acts, c. 86, § 1; 1977 Pub.Acts, c. 354, § 1; 1978 Pub.Acts, c. 532, § 1; 1979 Pub.Acts, c. 365, § 1; 1980 Pub.Acts, c. 607, § 1; 1981 Pub.Acts, c. 333, § 1; 1982 Pub.Acts, c. 880, § 1; 1983 Pub.Acts, c. 215, § 2; 1985 Pub.Acts, c. 393, §§ 4, 20; 1996 Pub.Acts, c. 790, § 2, eff. April 22, 1996; 1997 Pub.Acts, c. 533, § 3, eff. June 19, 1997; 1999 Pub.Acts, c. 520, § 41, eff. June 17, 1999; 2004 Pub.Acts, c. 962, § 6;2007 Pub.Acts, c. 330, § 1, eff. July 1, 2007.
Formerly Shannon's Code Supp., § 3608a175; 1932 Code, § 6876; 1950 Code Supp., § 6876; § 50-1005.
(a)(1) The interested parties shall have the right to settle all matters of compensation between themselves, but all settlements, before the settlements are binding on either party, shall be reduced to writing and shall be approved by the judge of the circuit court or chancery court of the county where the claim for compensation is entitled to be made. It shall be the duty of the judge of the circuit court or chancery court to whom any proposed settlement is presented for approval under this chapter, to examine the proposed settlement to determine whether the employee is receiving, substantially, the benefits provided by this chapter. To this end, the judge may call and examine witnesses. Upon the settlement's being approved, judgment shall be rendered on the settlement by the court and duly entered by the clerk. The cost of the proceeding shall be borne by the employer. Certified copies of all papers, orders, judgments and decrees filed or entered by the court upon the approval of such settlement, together with a copy of the settlement agreement, shall be forwarded to the division of workers' compensation by the employer within ten (10) days after the entry of the judgment. If it appears that any settlement approved by the court does not secure to the employee in a substantial manner the benefits of this chapter, the settlement may, in the discretion of the trial judge, be set aside at any time within thirty (30) days after the receipt of the papers by the division, upon the application of the employee or the administrator of the division in the employee's behalf, whether the court has adjourned in the meantime or not, notwithstanding § 50-6-230 to the contrary. In all cases where the settlement proceedings or any other court proceedings for workers' compensation under this chapter involve a subsequent injury wherein the employee would be entitled to receive or is claiming compensation from the second injury fund provided for in § 50-6-208, the administrator shall be made a party defendant to the proceedings in an action filed by either the employer or the injured employee and an attorney representing the department under the supervision of the attorney general and reporter shall represent the administrator in the proceeding. The court, by its decree, shall determine the right of the claimant to receive compensation from the fund, and the clerk of the court shall furnish to the administrator a certified copy of the decree, the cost of which shall be added to the costs of the proceedings and shall be paid as other costs are adjudged in the case.
(2) Notwithstanding any other provision of this chapter to the contrary, the parties shall not be permitted to compromise and settle the issue of future medical benefits to which an employee is entitled pursuant to this chapter, except in accordance with the following:
(A) Nothing in this section shall be construed to prohibit the parties from compromising and settling at any time the issue of future medical benefits; provided, that the settlement agreement is approved by a trial court, or the commissioner or the commissioner's designee, and includes a provision confirming that the claimant has been advised of the consequences of the settlement, if any, with respect to Medicare and TennCare benefits and liabilities.
(B) Deleted by 2011 Pub.Acts, c. 416, § 4, eff. June 6, 2011.
(C) Notwithstanding any other provision of this chapter or this subdivision (a)(2), an employee who is determined to be permanently totally disabled shall not be allowed to compromise and settle the employee's rights to future medical benefits.
(D) Deleted by 2011 Pub.Acts, c. 416, § 5, eff. June 6, 2011.
(b) Notwithstanding any other provision of this section, if there is a dispute between the parties as to whether a claim is compensable, or as to the amount of compensation due, the parties may settle the matter without regard to whether the employee is receiving substantially the benefits provided by this chapter; provided, that the settlement is determined by the court, or the commissioner or the commissioner's designee, to be in the best interest of the employee.
(c)(1) The commissioner or the commissioner's designee may approve a proposed settlement among the parties if:
(A) The settlement agreement has been signed by the parties;
(B) The commissioner or the commissioner's designee has determined that the employee is receiving, substantially, the benefits provided by this chapter, or, in cases subject to subsection (b), in the best interest of the employee; and
(C) If the employee was not represented by counsel at a benefit review conference, the settlement agreement shall be reviewed by a specialist within the department who was not associated with the employee's case.
(2) Among the parties, a settlement approved by the commissioner pursuant to this subsection (c) shall be entitled to the same standing as a judgment of a court of record for purposes of § 50-6-230 and all other purposes. A settlement approved by the commissioner may be appealed as a final order pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
(3)(A) For settlements in which the employee is represented by counsel, the parties shall seek the approval of the department as provided in this subsection (c), unless the parties agree to seek the approval of a court pursuant to subsection (a).
(B) For settlements in which the employee is not represented by counsel, the parties shall seek the approval of a court pursuant to subsection (a), unless the parties agree to seek approval from the department pursuant to this subsection (c).
(4) The commissioner or the commissioner's designee shall approve or reject settlements submitted to the department within three (3) business days of receiving the settlement. The review and approval or disapproval shall be provided in the regional offices of the division or other location agreed to by the parties and the division. If the commissioner or the designee does not approve or reject the settlement within three (3) business days, either party may submit a copy of the signed settlement to any court with jurisdiction to hear the underlying workers' compensation claim. If the injured employee is not represented by counsel, the review shall be conducted in person.
(5) In approving settlements pursuant to this subsection (c), the commissioner or the commissioner's designee shall consider all pertinent factors, including degree of medical impairment, the employee's age, education, skills and training, local job opportunities and capacity to work at types of employment available in the claimant's disabled condition. If the injured employee is not represented by counsel, then the commissioner or the commissioner's designee shall thoroughly inform the employee of the scope of benefits available under this chapter, the employee's rights and the procedures necessary to protect those rights.
1919 Pub.Acts, c. 123, § 27; 1945 Pub.Acts, c. 149, § 2; 1947 Pub.Acts, c. 139, § 5; 1969 Pub.Acts, c. 123, § 1; impl. am. by 1980 Pub.Acts, c. 534, § 1; 1980 Pub.Acts, c. 479, § 1; 1981 Pub.Acts, c. 488, § 4; 1983 Pub.Acts, c. 217, §§ 1, 2; 1996 Pub.Acts, c. 944, § 14, eff. Jan. 1, 1997; 1999 Pub.Acts, c. 520, § 41, eff. June 17, 1999; 2002 Pub.Acts, c. 695, § 4, eff. July 1, 2002; 2004 Pub.Acts, c. 962, §§ 3, 4, 48; 2011 Pub.Acts, c. 416, §§ 3 to 6, eff. June 6, 2011.
Formerly Shannon's Code Supp., § 3608a176; 1932 Code, § 6877; 1950 Code Supp., § 6877; § 50-1006.
The following is the schedule of compensation to be allowed employees under this chapter:
(1) TEMPORARY TOTAL DISABILITY.
(A) For injury producing temporary total disability, sixty-six and two thirds percent (66 2/3 %) of the average weekly wages as defined in this chapter, subject to the maximum weekly benefit and minimum weekly benefit; provided, that if the employee's average weekly wages are equal to or greater than the minimum weekly benefit, the employee shall receive not less than the minimum weekly benefit; and provided, further, that if the employee's average weekly wages are less than the minimum weekly benefit, the employee shall receive the full amount of the employee's average weekly wages, but in no event shall the compensation paid be less than the minimum weekly benefit. Where a fractional week of temporary total disability is involved, the compensation for each day shall be one seventh ( 1/7 ) of the amount due for a full week;
(B)(i) An employer may choose to continue to compensate an injured employee at the employee's regular wages or salary during the employee's period of temporary total and temporary partial disability. The payments shall not result in an employee's receiving less than the employee would otherwise receive for temporary disability benefits under this chapter; however, a court or the department has no authority to require an employer to pay any temporary disability benefits required by subdivision (1)(A), in addition to the employee's regular wages or salary;
(ii) When an employee receives payments under subdivision (1)(B)(i) and the employee's claim for compensation under this chapter is determined by a court or settlement to be compensable, the employer shall be given credit for the payments. The credit shall be no more than the employee would have been otherwise paid under subdivision (1)(A), and any amount paid beyond the amount that would have otherwise been paid under subdivision (1)(A) shall not be credited against any award for permanent disability;
(C) Any person who has drawn unemployment compensation benefits and who subsequently receives compensation for temporary disability benefits under a workers' compensation law with respect to the same period shall be required to repay the unemployment compensation benefits; provided, that the amount to be repaid does not exceed the amount of temporary disability benefits;
(D) An employee claiming a mental injury as defined by § 50-6-102 occurring on or after July 1, 2009, shall be conclusively presumed to be at maximum medical improvement upon the earliest occurrence of the following:
(i) At the time the treating psychiatrist concludes the employee has reached maximum medical improvement;
(ii) One hundred four (104) weeks after the employee has reached maximum medical improvement as a result of the physical injury or illness that is the proximate cause of the mental injury; or
(iii) One hundred four (104) weeks after the date of injury in the case of mental injuries where there is no underlying physical injury;
(E) If a treating physician determines that pain is persisting for an injured worker beyond an expected period for healing, the physician may refer such injured worker for pain management, encompassing pharmacological, nonpharmacological and other approaches to reduce or stop pain sensations. Such injured worker shall be presumed to have reached maximum medical improvement at the earliest occurrence of the following:
(i) The treating physician determines the injured worker has reached maximum medical improvement; or
(ii) One hundred and four (104) weeks after the commencement of pain management pursuant to the referral of the treating physician;
(2) TEMPORARY PARTIAL DISABILITY. In all cases of temporary partial disability, the compensation shall be sixty-six and two thirds percent (66 2/3 %) of the difference between the average weekly wage of the worker at the time of the injury and the wage the worker is able to earn in the worker's partially disabled condition. This compensation shall be paid during the period of the disability, not, however, beyond four hundred (400) weeks, payment to be made at the intervals when the wage was payable, as nearly as may be, and subject to the same maximum, as stated in subdivision (1). In no event shall the compensation be less than the minimum weekly benefit;
(3) PERMANENT PARTIAL DISABILITY.
(A) In case of disability partial in character but adjudged to be permanent, there shall be paid to the injured employee, in addition to the benefits provided by § 50-6-204, the following:
(i) Sixty-six and two thirds percent (66 2/3 %) of the injured employee's average weekly wages for the period of time during which the injured employee suffers temporary total disability on account of the injury, the benefit being subject to the same limitation as to minimum and maximum as provided in subdivision (1); and
(ii) In addition, the injured employee shall receive sixty-six and two thirds percent (66 2/3 %) of the injured employee's average weekly wages in accordance with the schedule set out in this subdivision (3); provided, that the compensation paid the injured employee for the period of temporary total disability and temporary partial disability shall not be deducted from the compensation to be paid under the schedule:
(a) For the loss of a thumb, sixty-six and two thirds percent (66 2/3 %) of the average weekly wages during sixty (60) weeks;
(b) For the loss of a first finger, commonly called an index finger, sixty-six and two thirds percent (66 2/3 %) of the average weekly wages during thirty-five (35) weeks;
(c) For the loss of a second finger, sixty-six and two thirds percent (66 2/3 %) of the average weekly wages during thirty (30) weeks;
(d) For the loss of a third finger, sixty-six and two thirds percent (66 2/3 %) of the average weekly wages during twenty (20) weeks;
(e) For the loss of a fourth finger, commonly called a little finger, sixty-six and two thirds percent (66 2/3 %) of the average weekly wages during fifteen (15) weeks;
(f) For the loss of the first phalange of the thumb, or of any finger, which shall be considered equal to the loss of one half ( 1/2 ) of such thumb or finger, compensation shall be paid at the prescribed rate during one half ( 1/2 ) of the time specified for the thumb or finger;
(g) The loss of more than one (1) phalange shall be considered as the loss of the entire finger or thumb; provided, that in no case shall the amount received for more than one (1) finger exceed the amount provided in this schedule for the loss of a hand;
(h) For the loss of the great toe, sixty-six and two thirds percent (66 2/3 %) of the average weekly wages during thirty (30) weeks;
(i) For the loss of one (1) of the toes other than the great toe, sixty-six and two thirds percent (66 2/3 %) of the average weekly wages during ten (10) weeks;
(j) The loss of a first phalange of any toe shall be considered to be equal to the loss of one half ( 1/2 ) of such toe, and compensation shall be paid at the prescribed rate during one half ( 1/2 ) the time specified for the toe;
(k) The loss of more than one phalange shall be considered as the loss of the entire toe;
(l) For the loss of a hand, sixty-six and two thirds percent (66 2/3 %) of the average weekly wages during one hundred fifty (150) weeks;
(m) For the loss of an arm, sixty-six and two thirds percent (66 2/3 %) of the average weekly wages during two hundred (200) weeks;
(n) For the loss of a foot, sixty-six and two thirds percent (66 2/3 %) of the average weekly wages for one hundred twenty-five (125) weeks;
(o) For the loss of a leg, sixty-six and two thirds percent (66 2/3 %) of the average weekly wages during two hundred (200) weeks;
(p) Compensation for an arm or leg, if amputated above the wrist joint or above the ankle joint shall be for the loss of the arm or leg;
(q) For the loss of an eye, sixty-six and two thirds percent (66 2/3 %) of the average weekly wages during one hundred (100) weeks;
(r) For the complete permanent loss of hearing in both ears, sixty-six and two thirds percent (66 2/3 %) of the average weekly wages during one hundred fifty (150) weeks;
(s) For the loss of an eye and a leg, sixty-six and two thirds percent (66 2/3 %) of the average weekly wages during three hundred fifty (350) weeks;
(t) For the loss of an eye and an arm, sixty-six and two thirds percent (66 2/3 %) of the average weekly wages during three hundred fifty (350) weeks;
(u) For the loss of an eye and a hand, sixty-six and two thirds percent (66 2/3 %) of the average weekly wages during three hundred twenty-five (325) weeks;
(v) For the loss of an eye and a foot, sixty-six and two thirds percent (66 2/3 %) of the average weekly wages during three hundred (300) weeks;
(w) For the loss of two (2) arms, other than at the shoulder, sixty-six and two thirds percent (66 2/3 %) of the average weekly wages during four hundred (400) weeks;
(x) For the loss of two (2) hands, sixty-six and two thirds percent (66 2/3 %) of the average weekly wages during four hundred (400) weeks;
(y) For the loss of two (2) legs, sixty-six and two thirds percent (66 2/3 %) of the average weekly wages during four hundred (400) weeks;
(z) For the loss of two (2) feet, sixty-six and two thirds percent (66 2/3 %) of the average weekly wages during four hundred (400) weeks;
(aa) For the loss of one (1) arm and the other hand, sixty-six and two thirds percent (66 2/3 %) of the average weekly wages during four hundred (400) weeks;
(bb) For the loss of one (1) hand and (1) foot, sixty-six and two thirds percent (66 2/3 %) of the average weekly wages during four hundred (400) weeks;
(cc) For the loss of one (1) leg and one (1) hand, sixty-six and two thirds percent (66 2/3 %) of the average weekly wages during four hundred (400) weeks;
(dd) For the loss of one (1) arm and one (1) foot, sixty-six and two thirds percent (66 2/3 %) of the average weekly wages during four hundred (400) weeks; and
(ee) For the loss of one (1) arm and one (1) leg, sixty-six and two thirds percent (66 2/3 %) of the average weekly wages during four hundred (400) weeks;
(B) The total amount of compensation payable in this subdivision (3) shall not exceed the maximum total benefit;
(C) When an employee sustains concurrent injuries resulting in concurrent disabilities, such employee shall receive compensation only for the injury that produced the longest period of disability, but this section shall not affect liability for the concurrent loss of more than one (1) member, for which members' compensations are provided in the specific schedule and in subdivision (4)(B). In all cases the permanent and total loss of the use of a member shall be considered as equivalent to the loss of that member, but in such cases the compensation in and by the schedule provided shall be in lieu of all other compensation;
(D) In cases of permanent partial disability due to injury to a member resulting in less than total loss of use of the member not otherwise compensated in this schedule, compensation shall be paid at the prescribed rate during that part of the time specified in the schedule for the total loss or total loss of use of the respective member that the extent of injury to the member bears to its total loss. If an injured employee refuses employment suitable to the injured employee's capacity, offered to or procured for the injured employee, the injured employee shall not be entitled to any compensation at any time during the continuance of the refusal, unless at any time in the opinion of a court having jurisdiction over the underlying workers' compensation case the refusal is justifiable. All compensation provided in this subdivision (3) for loss to members, or loss of use of members, is subject to the same limitation as to maximum and minimum as are stated in subdivision (1);
(E) For serious disfigurement to the head, face or hands, not resulting from the loss of a member or other injury specifically compensated, so altering the personal appearance of the injured employee as to materially affect the injured employee's employability in the employment in which the injured employee was injured or other employment for which the injured employee is then qualified, sixty-six and two thirds percent (66 2/3 %) of the average weekly wages for the period the court determines, not exceeding two hundred (200) weeks. This benefit shall not be awarded in any case where the injured employee is compensated under any other provision of this chapter;
(F) All other cases of permanent partial disability enumerated in this subdivision (3) shall be apportioned to the body as a whole, which shall have a value of four hundred (400) weeks, and there shall be paid compensation to the injured employee for the proportionate loss of use of the body as a whole resulting from the injury. Compensation for such permanent partial disability shall be subject to the same limitations as to maximum and minimum as provided in subdivision (1). If an employee has previously sustained an injury compensable under this section for which a court of competent jurisdiction has awarded benefits based on percentage of disability to the body as a whole and suffers a subsequent injury not enumerated in this subdivision (3), the injured employee shall be paid compensation for the period of temporary total disability and only for the degree of permanent disability that results from the subsequent injury. The benefits provided by this subdivision (3)(F) shall not be awarded in any case where benefits for a specific loss are otherwise provided in this chapter;
(4) PERMANENT TOTAL DISABILITY.
(A)(i) For permanent total disability as defined in subdivision (4)(B), sixty-six and two thirds percent (66 2/3 %) of the wages received at the time of the injury, subject to the maximum weekly benefit and minimum weekly benefit; provided, that if the employee's average weekly wages are equal to or greater than the minimum weekly benefit, the employee shall receive not less than the minimum weekly benefit; provided, further, that if the employee's average weekly wages are less than the minimum weekly benefit, the employee shall receive the full amount of the employee's average weekly wages, but in no event shall the compensation paid be less than the minimum weekly benefit. This compensation shall be paid during the period of the permanent total disability until the employee is, by age, eligible for full benefits in the Old Age Insurance Benefit Program under the Social Security Act, compiled in 42 U.S.C. § 401 et seq.; provided, that with respect to disabilities resulting from injuries that occur after sixty (60) years of age, regardless of the age of the employee, permanent total disability benefits are payable for a period of two hundred sixty (260) weeks. The compensation payments shall be reduced by the amount of any old age insurance benefit payments attributable to employer contributions that the employee may receive under title 42, chapter 7, title II of the Social Security Act, 42 U.S.C. § 401 et seq. Notwithstanding any statute or court decision to the contrary, the statutory social security offset provided by this section shall have no applicability to death benefits awarded to a deceased worker's dependents pursuant to this chapter;
(ii) Notwithstanding any other law to the contrary and notwithstanding any agreement of the parties to the contrary, permanent total disability payments shall not be commuted to a lump sum, except in accordance with the following:
(a) Benefits may be commuted to a lump sum to pay only the employee's attorney's fees and litigation expenses and to pay pre-injury obligations in arrears;
(b) The commuted portion of an award shall not exceed the value of one hundred (100) weeks of the employee's benefits;
(c) After the total amount of the commuted lump sum is determined, the amount of the weekly disability benefit shall be recalculated to distribute the total remaining permanent total benefits in equal weekly installments beginning with the date of entry of the order and terminating on the date the employee's disability benefits terminate pursuant to subdivision (4)(A)(i);
(iii) Attorneys' fees in contested cases of permanent total disability shall be calculated upon the first four hundred (400) weeks of disability only;
(iv) In case an employee who is permanently and totally disabled becomes a resident of a public institution, and provided further, that if no person or persons are wholly dependent upon the employee, then the amounts falling due during the lifetime of the employee shall be paid to the employee or to the employee's guardian or conservator, if adjudicated incompetent, to be spent for the employee's benefit; such payments to cease upon the death of the employee;
(B) When an injury not otherwise specifically provided for in this chapter totally incapacitates the employee from working at an occupation that brings the employee an income, the employee shall be considered totally disabled and for such disability compensation shall be paid as provided in subdivision (4)(A); provided, that the total amount of compensation payable under this subdivision (4)(B) shall not exceed the maximum total benefit, exclusive of medical and hospital benefits;
(C)(i) If an employee is determined, by trial or settlement, to be permanently totally disabled, the employer, insurer or the department, in the event the second injury fund is involved, may have the employee examined, at the expense of the requesting entity, from time to time, subject to the conditions outlined in this section, and may seek reconsideration of the issue of permanent total disability as provided in this subdivision (4)(C);
(ii) The request for the examination of the employee may not be made until twenty-four (24) months have elapsed following the entry of a final order in which it is determined that the employee is permanently totally disabled. Any request for an examination is subject to considerations of reasonableness in regard to notice prior to examination, place of examination and length of examination;
(iii) A request for an examination may not be made more often than once every twenty-four (24) months. The procedure for this examination shall be as follows:
(a) The requesting entity shall first make informal contact with the employee, either by letter or by telephone, to attempt to schedule an appointment with a physician for examination at a mutually agreeable time and place. It is the intent of the general assembly that the requesting entity make a good faith effort to reach a mutual agreement for examination, recognizing the inherently intrusive nature of a request for examination;
(b) If, after a reasonable period of time, not to exceed thirty (30) days, mutual agreement is not reached, the requesting entity shall send the employee written notice of demand for examination by certified mail, return receipt requested, on a form provided by the department. The form shall clearly inform the employee of the following: the date, time and place of the examination; the name of the examining physician; the employee's obligations; any pertinent time limitations; the employee's rights; and any consequences of the employee's failure to submit to the examination. The examination shall be scheduled to take place within thirty (30) days of the date on the notice;
(c) After receipt of the notice of demand for examination, the employee shall either submit to the examination at the time and place identified in the notice form, or, within thirty (30) days from the date of the notice, the employee shall schedule an appointment for a different date and time conducted by the same physician, and this examination shall be completed no later than ninety (90) days from the date of the notice;
(d) In the event the employee fails to submit to the examination at the time and place identified in the notice form and fails to schedule, within thirty (30) days from the date of the notice, an alternative examination date, as provided in subdivision (4)(C)(iii)(c), then the employee's periodic benefits shall be suspended for a period of thirty (30) days;
(e) In the event the employee schedules an alternative date for the examination as provided in subdivision (4)(C)(iii)(c), and fails to submit to the examination within the ninety (90) day period, then the employee's periodic benefits shall be suspended for a period of thirty (30) days beginning at the end of the ninety (90) day period within which the alternatively scheduled examination was to be completed;
(f) If the employee submits to an examination within any period of suspension of benefits, then within fourteen (14) days of the submission, periodic benefits shall be restored and any periodic benefits that were withheld during any period of suspension of benefits shall be remitted to the employee;
(g) Within ten (10) days of the date on which periodic benefits are suspended pursuant to either subdivision (4)(C)(iii)(d) or (4)(C)(iii)(e), the entity suspending the periodic benefits shall notify the department, in writing, that periodic benefits have been suspended and the date on which the periodic benefits were suspended and shall provide the department a copy of the original notice of demand for examination sent to the employee; and
(h) After the department receives notice of suspension of benefits pursuant to either subdivision (4)(C)(iii)(d) or (4)(C)(iii)(e), the department shall contact the employee and for a period of thirty (30) days assist the employee to schedule an examination to be conducted by the physician named in the notice. After the thirty (30) day assistance period has elapsed, if the employee has not submitted to an examination, the department shall authorize the employer, insurer or department to suspend periodic benefits for a period of thirty (30) days. At the conclusion of each thirty (30) day suspension period, periodic benefits shall be restored. After the restoration of periodic benefits, the department shall, in thirty (30) day cycles, continue to assist the employee to schedule the examination, to be followed by thirty (30) day cycles of suspension of benefits until the examination of the employee is completed. If, at any time during any period of suspension of periodic benefits, the employee submits to an examination, then within fourteen (14) days of notice of the examination having been conducted, periodic benefits shall be restored and any periodic benefits that were withheld during any period of suspension shall be remitted to the employee;
(iv) Subsequent to an examination as described in this subdivision (4)(C), the employer, insurer or department may request a reconsideration of the issue of whether the employee continues to be permanently totally disabled based on any changes in the employee's circumstances that have occurred since the time of the initial settlement or trial;
(v) Prior to filing any request for reconsideration, the employer, insurer or department shall request a benefit review conference with the department. The parties may not waive the benefit review conference. If the parties are unable to reach an agreement at the benefit review conference, the employer, insurer or department may file a request for reconsideration before the court originally adjudging or approving the award of permanent total disability. In the event that a settlement approved by the department is to be reconsidered under these provisions, then a cause of action should be filed as provided in § 50-6-225;
(vi) In the event a reconsideration request is filed pursuant to this section, the only remedy available to the employer, insurer or department is the modification or termination of future periodic disability benefits;
(vii) In the event the employer, insurer or department files a request for reconsideration or cause of action under this subdivision (4)(C) and the court does not terminate the employee's future periodic disability benefits, the employee shall be entitled to an award of reasonable attorney fees, court costs and reasonable and necessary expenses incurred by the employee in responding to the request for reconsideration upon application to and approval by the court. In determining what attorney fees shall be awarded under this subdivision (4)(C), the court shall make specific findings with respect to the following criteria:
(a) The time and labor required, the novelty and difficulty of the questions involved in responding to the request for reconsideration, and the skill requisite to perform the legal service properly;
(b) The fee customarily charged in the locality or by the attorney for similar legal services;
(c) The amount involved and the results obtained;
(d) The time limitations imposed by the client or by the circumstances; and
(e) The experience, reputation, and ability of the lawyer or lawyers performing the services;
(D)(i) The employer, insurer or department, in the event the second injury fund is involved, shall notify the department, on a form to be developed by the department, of the entry of a final order adjudging an employee to be permanently totally disabled. The form shall be submitted to the department within thirty (30) days of the entry of the order;
(ii) On an annual basis, the department shall require an employee who is receiving permanent total disability benefits to certify on forms provided by the department that the employee continues to be permanently totally disabled, that the employee is not currently working at an occupation that brings the employee an income and has not been gainfully employed since the date permanent total disability benefits were awarded, by trial or settlement;
(iii) The department shall send the certification form to the employee by certified mail, return receipt requested and shall include a self-addressed stamped envelope for the return of the completed form; and
(iv) In each annual cycle, if the employee fails to return the form to the department within thirty (30) days of the date of receipt of the form, as evidenced by the date on the return receipt notice, then the department shall notify the entity who gave notice to the department that the employee was permanently totally disabled pursuant to subdivision (4)(D)(i) that four (4) weeks of periodic disability benefits shall be withheld from the employee as a penalty for the failure to return the form to the department. If the completed form is returned to the department within one hundred twenty (120) days of the date on the return receipt notice, the department shall notify the appropriate entity and then, within fourteen (14) days of receipt of the notice from the department, that entity shall refund to the employee the entire four (4) weeks of periodic disability benefits previously withheld from the employee;
(5) DEDUCTIONS IN CASE OF DEATH. In case a worker sustains an injury due to an accident arising out of and in the course of the worker's employment, and during the period of disability caused by the injury death results proximately from the injury, all payments previously made as compensation for the injury shall be deducted from the compensation, if any, due on account of death; and
(6) For social security purposes only, as permitted by federal law or regulation, in an award of compensation as a lump sum or a partial lump sum under this chapter for permanent partial or permanent total disability, the court may make a finding of fact that the payment represents a payment to the individual to be distributed over the individual's lifetime based upon life expectancy as determined from mortality tables from this code.
1919 Pub.Acts, c. 123, § 28; 1923 Pub.Acts, c. 84, § 1; 1927 Pub.Acts, c. 40, § 2; 1941 Pub.Acts, c. 90, § 5; 1947 Pub.Acts, c. 139, § 6; 1949 Pub.Acts, c. 277, § 3; 1953 Pub.Acts, c. 111, § 2; 1955 Pub.Acts, c. 182, §§ 2 to 5; 1957 Pub.Acts, c. 270, §§ 1 to 3; 1959 Pub.Acts, c. 172, §§ 2 to 6; 1961 Pub.Acts, c. 26, § 1; 1961 Pub.Acts, c. 125, § 1; 1963 Pub.Acts, c. 362, §§ 1, 4; 1965 Pub.Acts, c. 158, § 1; 1967 Pub.Acts, c. 313, §§ 1, 2, 4, 5; 1969 Pub.Acts, c. 196, §§ 1, 2; 1971 Pub.Acts, c. 134, §§ 1, 2, 4; 1973 Pub.Acts, c. 379, § 6; 1974 Pub.Acts, c. 617, §§ 2, 7; 1975 Pub.Acts, c. 86, §§ 2, 7; 1977 Pub.Acts, c. 354, § 2; impl. am. by 1978 Pub.Acts, c. 934, §§ 16, 36; 1979 Pub.Acts, c. 365, § 2; impl. am. by 1980 Pub.Acts, c. 534, § 1; 1980 Pub.Acts, c. 607, §§ 2 to 5; 1981 Pub.Acts, c. 333, §§ 2 to 5; 1982 Pub.Acts, c. 880, §§ 2 to 5; 1985 Pub.Acts, c. 393, §§ 5 to 9; 1992 Pub.Acts, c. 900, § 17;1996 Pub.Acts, c. 919, § 2, eff. July 1, 1996; 2000 Pub.Acts, c. 852, § 4, 20, eff. May 31, 2000; 2002 Pub.Acts, c. 833, §§ 1 to 3; 2003 Pub.Acts, c. 194, § 1, eff. May 29, 2003; 2004 Pub.Acts, c. 443, § 1, eff. July 1, 2004; 2007 Pub.Acts, c. 403, § 1, eff. June 11, 2007; 2007 Pub.Acts, c. 513, § 1, eff. July 1, 2007; 2009 Pub.Acts, c. 599, § 4, eff. July 8, 2009; 2010 Pub.Acts, c. 920, § 1, eff. July 1, 2010; 2011 Pub.Acts, c. 47, § 52, eff. July 1, 2011.
Formerly Shannon's Code Supp., § 3608a177; 1932 Code, § 6878; 1950 Code Supp., § 6878; § 50-1007.
(a)(1) If an employee has previously sustained a permanent physical disability from any cause or origin and becomes permanently and totally disabled through a subsequent injury, the employee shall be entitled to compensation from the employee's employer or the employer's insurance company only for the disability that would have resulted from the subsequent injury, and the previous injury shall not be considered in estimating the compensation to which the employee may be entitled under this chapter from the employer or the employer's insurance company; provided, that in addition to the compensation for a subsequent injury, and after completion of the payments for the subsequent injury, then the employee shall be paid the remainder of the compensation that would be due for the permanent total disability out of a special fund to be known as the second injury fund.
(2) To receive benefits from the second injury fund, the injured employee must be the employee of an employer who has properly insured the employer's workers' compensation liability or has qualified to operate under this chapter as a self-insurer, and the employer must establish that the employer had actual knowledge of the permanent and preexisting disability at the time that the employee was hired or at the time that the employee was retained in employment after the employer acquired knowledge, but in all cases prior to the subsequent injury.
(3) In determining the percentage of disability for which the second injury fund shall be liable, no previous physical impairment shall be considered unless the impairment was within the knowledge of the employer as prescribed in subdivision (a)(2).
(4) Nothing in this section shall be construed to limit the employer's liability as provided by law for aggravation of preexisting conditions or disabilities in cases where recovery against the second injury fund is not applicable.
(b)(1)(A) In cases where the injured employee has received or will receive a workers' compensation award or awards for permanent disability to the body as a whole, and the combination of the awards equals or exceeds one hundred percent (100%) permanent disability to the body as a whole, the employee shall not be entitled to receive from the employer or its insurance carrier any compensation for permanent disability to the body as a whole that would be in excess of one hundred percent (100%) permanent disability to the body as a whole, after combining awards.
(B) Benefits that may be due the employee for permanent disability to the body as a whole in excess of one hundred percent (100%) permanent disability to the body as a whole, after combining awards, shall be paid by the second injury fund.
(C) It is the intention of the general assembly that once an employee receives an award or awards for permanent disability to the body as a whole, and the awards total one hundred percent (100%) permanent disability, any permanent disability compensation due for subsequent compensable injuries to the body as a whole shall be paid by the second injury fund, instead of by the employer.
(D) This subdivision (b)(1) shall apply only to injuries that arise on or before June 30, 2006, and shall have no applicability to injuries that arise on or after July 1, 2006.
(2)(A) The burden of proving the existence of previous awards for permanent disability specific to the body as a whole shall be on the party claiming compensation against the second injury fund. This subdivision (b)(2)(A) shall apply only to injuries that arise on or before June 30, 2006, and shall have no applicability to injuries that arise on or after July 1, 2006.
(B) Claims against the fund shall be made by either the injured employee or the employer in the manner prescribed in § 50-6-206.
(C) Nothing in this section shall relieve the employer or its insurance company of liability for other benefits that may be due the injured employee, including temporary benefits, medical expenses and permanent benefits for injuries other than to the body as a whole, regardless of whether the combination of workers' compensation awards exceeds one hundred percent (100%) permanent disability.
(c) A sum sufficient to provide the benefits of this section shall be allocated from the four percent (4%) premium tax imposed in § 50-6-401(b), subject to a maximum allocation of fifty percent (50%) of the premium tax collected. The sums shall be deposited in the second injury fund for distribution by the administrator of the division of workers' compensation.
(d) There is appropriated a sum sufficient to the second injury fund for payment of benefits provided in this section, pursuant to this section. The appropriation shall be allocated from and equal to an amount not greater than fifty percent (50%) of the revenues derived from the premium tax levied pursuant to § 50-6-401.
(e) The sums collected by the administrator as provided in this section shall be deposited by the administrator in a special fund, which shall be termed the second injury fund, to be disbursed by the administrator only for the purposes stated in this section and shall not at any time be appropriated or diverted to any other purpose. The administrator shall not invest any moneys in the second injury fund in any other manner than is provided by the general laws of the state for investments of funds in the hands of the state treasurer. Disbursements from the fund shall be made by the administrator only after receipt by the administrator of a certified copy of the court decree awarding compensation as provided in this section. Disbursements shall be made only in accordance with the decree. A copy of the decree awarding compensation from the second injury fund shall in all cases be filed with the division.
(f) The commissioner, in consultation with the attorney general and reporter, shall prepare a plan for a pilot project using private legal counsel to defend the administrator in actions claiming compensation from the second injury fund pursuant to § 50-6-206. The plan shall include types of cases, approximate numbers of cases, proposed method of selection and other relevant matters. Any private legal counsel retained for these purposes shall be retained pursuant to § 8-6-106. Expenses relating to private legal counsel retained pursuant to this subsection (f) shall be paid from the second injury fund.
(g)(1) Before any proposed settlement is considered final in cases involving benefits from the second injury fund under this section, it shall either:
(A) Have the written approval of the commissioner or the commissioner's designee, in accordance with subdivision (g)(2); or
(B) Have been approved in accordance with § 20-13-103.
(2) The commissioner is authorized to settle certain second injury fund claims without the necessity of complying with § 20-13-103; provided, that the attorney general and reporter, with the written approval of the governor and the comptroller of the treasury, shall set specific limits and conditions on the settlement authority.
(h) In order to require the second injury fund to participate in the benefit review conference, a party shall serve notice of potential liability on the fund.
(i) “Party” or “parties,” as referenced in § 50-6-204(d)(5), shall include the second injury fund.
1919 Pub.Acts, c. 123, § 20; 1945 Pub.Acts, c. 149, § 1; 1961 Pub.Acts, c. 26, § 2; 1973 Pub.Acts, c. 379, § 10; 1975 Pub.Acts, c. 76, § 1; impl. am. by 1980 Pub.Acts, c. 534, § 2; 1980 Pub.Acts, c. 479, § 2; 1983 Pub.Acts, c. 217, §§ 3, 4; 1985 Pub.Acts, c. 319, § 1; 1985 Pub.Acts, c. 393, §§ 10, 22; 1989 Pub.Acts, c. 238, § 1; 1996 Pub.Acts, c. 944, § 15, eff. July 1, 1996; 1997 Pub.Acts, c. 533, § 4, eff. June 19, 1997; 1999 Pub.Acts. c. 520, § 41, eff. June 17, 1999; 2001 Pub.Acts, c. 366, § 1, eff. June 7, 2001; 2002 Pub.Acts, c. 695, § 3, eff. July 1, 2002; 2004 Pub.Acts, c. 962, § 25;2005 Pub.Acts, c. 390, §§ 7, 15, 16, eff. June 9, 2005; 2006 Pub.Acts, c. 1014, § 1, eff. June 27, 2006.
Formerly Shannon's Code Supp., § 3608a169; 1932 Code, § 6871; 1950 Code Supp., § 6871; § 50-1027.
(a) In all cases of permanent total disability of an employee covered by this chapter, sixty-six and two-thirds percent (66 2/3 %) of the average weekly wages shall be paid, subject to maximum compensation as follows: where there are or are not persons dependent upon each injured employee, the maximum weekly benefit per week.
(b)(1) In all cases of death of an employee covered by this chapter, sixty-six and two-thirds percent (66 2/3 %) of the average weekly wages shall be paid in cases where the deceased employee leaves dependents, subject to the maximum weekly benefit.
(2) In all cases of death of an employee covered by this chapter, and where the employee leaves no dependents, as provided in § 50-6-210, then the lump sum amount of twenty thousand dollars ($20,000) shall be paid to the estate of the deceased employee.
(3) The total amount of compensation payable under this subsection (b) shall not exceed the maximum total benefit exclusive of medical, hospital and funeral benefits.
1923 Pub.Acts, c. 84, § 1; 1927 Pub.Acts, c. 40, § 1; 1941 Pub.Acts, c. 90, §§ 6, 7; 1947 Pub.Acts, c. 139, §§ 7 to 9; 1949 Pub.Acts, c. 277, §§ 4 to 6; 1953 Pub.Acts, c. 111, §§ 3 to 5; 1955 Pub.Acts, c. 182, §§ 6 to 8; 1957 Pub.Acts, c. 270, §§ 4 to 6; 1959 Pub.Acts, c. 172, §§ 7 to 9; 1963 Pub.Acts, c. 362, § 1; 1965 Pub.Acts, c. 158, § 1; 1967 Pub.Acts, c. 313, §§ 1, 2; 1969 Pub.Acts, c. 196, §§ 1, 2; 1971 Pub.Acts, c. 134, §§ 1, 2; 1973 Pub.Acts, c. 379, §§ 7, 8; 1974 Pub.Acts, c. 617, §§ 3 to 5; 1975 Pub.Acts, c. 86, §§ 3 to 5; 1977 Pub.Acts, c. 354, §§ 3 to 5; 1979 Pub.Acts, c. 365, §§ 3 to 5; impl. am. by 1980 Pub.Acts, c. 534, § 1; 1980 Pub.Acts, c. 607, §§ 6 to 8; 1980 Pub.Acts, c. 650, § 2; 1981 Pub.Acts, c. 333, §§ 6 to 8; 1982 Pub.Acts, c. 880, §§ 6 to 8; 1985 Pub.Acts, c. 393, § 12; 1999 Pub.Acts, c. 404, § 1, eff. July 1, 1999.
Formerly Shannon's Code Supp., §§ 3608a178, 3608a179; mod. 1932 Code, §§ 6879 to 6881; 1950 Code Supp., §§ 6879 to 6881; §§ 50-1008, 50-1010, 50-1011.
(a) PERSONS WHOLLY DEPENDENT. For the purposes of this chapter, the following persons shall be conclusively presumed to be wholly dependent:
(1) A surviving spouse, unless it is shown that the surviving spouse was voluntarily living apart from the surviving spouse's spouse at the time of injury; and
(2) Children under sixteen (16) years of age.
(b) PERSONS PRIMA FACIE DEPENDENT. Children between sixteen (16) and eighteen (18) years of age, or those over eighteen (18) years of age, if physically or mentally incapacitated from earning, shall prima facie be considered dependent.
(c) ACTUAL DEPENDENTS. Wife, husband, child, mother, father, grandparent, sister, brother, mother-in-law, father-in-law, who were wholly supported by the deceased employee at the time of death and for a reasonable period of time immediately prior to the time of death, shall be considered actual dependents, and payment of compensation shall be made in the order named.
(d) PARTIAL DEPENDENTS. Any member of a class named in subsection (c) who regularly derived part of the member's support from the wages of the deceased employee at the time of death and for a reasonable period of time immediately prior to the time of death shall be considered a partial dependent, and payment of compensation shall be made to the dependents in the order named.
(e) COMPENSATION IN DEATH CASES. In death cases, compensation payable to dependents shall be computed on the following basis, and shall be paid to the persons entitled to compensation, without administration:
(1) SURVIVING SPOUSE AND NO DEPENDENT CHILD. If the deceased employee leaves a surviving spouse and no dependent child, there shall be paid to the surviving spouse fifty percent (50%) of the average weekly wages of the deceased.
(2) SURVIVING SPOUSE AND CHILDREN. If the deceased employee leaves a surviving spouse and one (1) or more dependent children, there shall be paid to the surviving spouse for the benefit of the surviving spouse and the child or children, sixty-six and two-thirds percent (66 2/3 %) of the average weekly wages of the deceased.
(3) SURVIVING SPOUSE AND CHILDREN, HOW PAID. In all cases where compensation is payable to a surviving spouse for the benefit of the surviving spouse and dependent child or children, the court shall have the power to determine in its discretion what portion of the compensation shall be applied for the benefit of any child or children, and may order the compensation paid to a guardian.
(4) REMARRIAGE OF SURVIVING SPOUSE. Upon the remarriage of a surviving spouse, if there is no child of the deceased employee, the compensation shall terminate; but if there is a child or children under eighteen (18) years of age, or over eighteen (18) years of age if physically or mentally incapacitated from earning, from the time of the remarriage the child or children shall have status of orphan or orphans, and draw compensation accordingly, not, however, to exceed sixty-six and two-thirds percent (66 2/3 %) of the average weekly wages of the deceased.
(5) DEPENDENT ORPHANS. If the deceased employee leaves one (1) dependent orphan, there shall be paid fifty percent (50%) of the average weekly wages of the deceased; if the deceased leaves two (2) or more dependent orphans, there shall be paid sixty-six and two-thirds percent (66 2/3 %) of the average weekly wages of the deceased.
(6) PARENT OR PARENTS. If the deceased employee leaves no surviving spouse or child entitled to any payment under this section, but should leave a parent or parents, either or both of whom are wholly dependent on the deceased, there shall be paid, if only one (1) parent, twenty-five percent (25%) of the average weekly wages of the deceased to the parent, and if both parents, thirty-five percent (35%) of the average weekly wages of the deceased to the parents.
(7) GRANDPARENT, BROTHER, SISTER, MOTHER-IN-LAW OR FATHER-IN-LAW. If the deceased leaves no surviving spouse or dependent child or parent entitled to any payment under this section, but leaves a grandparent, brother, sister, mother-in-law or father-in-law wholly dependent upon the deceased for support, there shall be paid to the dependent, if only one (1), twenty percent (20%) of the average weekly wages of the deceased, or, if more than one (1), twenty-five percent (25%) of the average weekly wages of the deceased, divided between them or among them share and share alike.
(8) COMPENSATION TO DEPENDENTS TO CEASE UPON DEATH OR MARRIAGE. If compensation is being paid under this chapter to any dependent, the compensation shall cease, upon the death or marriage of the dependent, unless otherwise provided in this section.
(9) PARTIAL DEPENDENTS TO RECEIVE PROPORTION. Partial dependents shall be entitled to receive only that proportion of the benefits provided for actual dependents that the average amount of the wages regularly contributed by the deceased to the partial dependent at the time of, and for a reasonable time immediately prior to, the injury, bore to the total income of the dependent during the same time.
(10) MAXIMUM AND MINIMUM COMPENSATION. The compensation payable in case of death to persons wholly dependent shall be subject to the maximum weekly benefit and minimum weekly benefit; provided, that if at the time of injury the employee receives wages of less than the minimum weekly benefit, the compensation shall be the full amount of the wages a week, but in no event shall the compensation payable under this provision be less than the minimum weekly benefit. The compensation payable to partial dependents shall be subject to the same maximum and minimum specified in this subdivision (e)(10); provided, that if the income loss of the partial dependents by the death is less than the minimum weekly benefit, then the dependents shall receive the full amount of the income loss. This compensation shall be paid during dependency not to exceed the maximum total benefit, payments to be paid at the intervals when the wage was payable, as nearly as may be.
(11) ORPHANS AND OTHER CHILDREN. In computing and paying compensation to orphans or other children, in all cases, only those under eighteen (18) years of age, or those over eighteen (18) years of age who are physically or mentally incapacitated from earning, shall be included, the former to receive compensation only during the time they are under eighteen (18) years of age, the latter only for the time they are so incapacitated. If the dependent is attending a recognized educational institution, benefits shall be paid until twenty-two (22) years of age.
(12) ACTUAL DEPENDENTS. Actual dependents shall be entitled to take compensation in the order named in subsection (c), until sixty-six and two-thirds percent (66 2/3 %) of the monthly wages of the deceased during the time specified in this chapter have been exhausted, but the total compensation to be paid to all actual dependents of a deceased employee shall not exceed in the aggregate the maximum weekly benefit.
(13) DEPENDENCY STATUS NOT AFFECTED BY CERTAIN ASSISTANCE PAYMENTS. Sums distributed under the Employment Security Law, compiled in chapter 7 of this title; the Old-Age Assistance Law, compiled in title 71, chapter 2, part 2; the Aid to Dependent Children Law, compiled in title 71, chapter 3, part 1; Aid to Blind Law, compiled in title 71, chapter 4, part 1; the federal Social Security Act, compiled in 42 U.S.C. § 301 et seq., or any other public assistance distributed by the United States government, the state, or any county or municipality of the state, shall not be considered income within the meaning of this law and shall not affect the status or compensation of any person entitled to benefits as provided in this chapter.
1919 Pub.Acts, c. 123, § 30; 1923 Pub.Acts, c. 84, § 1; 1927 Pub.Acts, c. 40, § 3; 1941 Pub.Acts, c. 90, § 8; 1943 Pub.Acts, c. 110, § 1; 1947 Pub.Acts, c. 139, § 10; 1949 Pub.Acts, c. 277, § 7; 1953 Pub.Acts, c. 111, § 6; 1955 Pub.Acts, c. 182, §§ 9 to 16; 1957 Pub.Acts, c. 270, §§ 7, 8; 1959 Pub.Acts, c. 172, §§ 10, 11; 1963 Pub.Acts, c. 362, § 1; 1965 Pub.Acts, c. 158, § 1; 1967 Pub.Acts, c. 313, §§ 1, 2; 1969 Pub.Acts, c. 196, §§ 1, 2; 1971 Pub.Acts, c. 134, §§ 1, 2, 4; 1972 Pub.Acts, c. 699, § 3; 1973 Pub.Acts, c. 379, § 9; 1974 Pub.Acts, c. 617, §§ 6, 7; 1975 Pub.Acts, c. 86, §§ 6, 7; 1977 Pub.Acts, c. 354, § 6; 1979 Pub.Acts, c. 365, § 6; 1979 Pub.Acts, c. 370, § 1; impl. am. by 1980 Pub.Acts, c. 534, § 1; 1980 Pub.Acts, c. 607, §§ 9 to 11; 1981 Pub.Acts, c. 333, §§ 9, 10; 1982 Pub.Acts, c. 880, §§ 9, 10; 1985 Pub.Acts, c. 393, § 13.
Formerly Shannon's Code Supp., § 3608a181; 1932 Code, § 6883; 1950 Code Supp., § 6883; § 50-1013.
(a) In case any employee for whose injury or death compensation is payable under this chapter, shall, at the time of injury, be employed and paid jointly by two (2) or more employers subject to this chapter, the employers shall contribute to the payment of the compensation in a proportion of their several wage liability to the employee.
(b) If one (1) or more, but not all, of the employers are subject to this chapter, and otherwise subject to liability for compensation under this chapter, then the liability of those who are so subject shall be to pay the proportion of the entire compensation that their portion of the wage liability bears to the wages of the employee; provided, that nothing in this section shall prevent any agreement between the different employers between themselves as to the distribution of the ultimate burden of the compensation.
1919 Pub.Acts, c. 123, § 29; impl. am. by 1980 Pub.Acts, c. 534, § 1.
Formerly Shannon's Code Supp., § 3608a180; 1932 Code, § 6882; § 50-1012.
(a) In all claims for compensation for hernia or rupture, resulting from injury by accident arising out of and in the course of the employee's employment, it must be definitely proven to the satisfaction of the court that:
(1) There was an injury resulting in hernia or rupture;
(2) The hernia or rupture appeared suddenly;
(3) It was accompanied by pain;
(4) The hernia or rupture immediately followed the accident; and
(5) The hernia or rupture did not exist prior to the accident for which compensation is claimed.
(b) All hernia or rupture, inguinal, femoral or otherwise, so proven to be the result of an injury by accident arising out of and in the course of the employment, shall be treated in a surgical manner by a radical operation. If death results from the operation, the death shall be considered as the result of the injury, and compensation paid in accordance with this chapter.
(c)(1) In case the injured employee refuses to undergo the radical operation for the cure of the hernia or rupture, no compensation will be allowed during the time the refusal continues.
(2) If, however, it is shown that the employee has some chronic disease, or is otherwise in such physical condition that the court finds it unsafe for the employee to undergo the operation, the employee shall be paid compensation in accordance with this chapter.
1941 Pub.Acts, c. 90, § 10.
Formerly 1950 Code Supp., § 6892.1; Williams' Code, § 6892a; § 50-1009.
(a) Epileptics may elect not to be subject to this part for injuries resulting because of epilepsy and still remain subject to its provisions for all other injuries.
(b) This election shall be made by giving notice to the employer in writing on a form to be furnished by the division of workers' compensation and filing a copy of the notice with the division.
(c) An election may be revoked by giving written notice to the employer of revocation, and the revocation shall be effective upon filing copy of the notice with the division.
1977 Pub.Acts, c. 223, § 1; impl. am. by 1980 Pub.Acts, c. 534, § 1.
Formerly § 50-1029.
(a) The commissioner or the commissioner's designee shall order appropriate workers' compensation benefits and loss adjustment expenses associated with the claim to be paid on an equal basis by the insurance carrier or carriers and the self-insured employer, as appropriate, in any case where:
(1)(A) An employer changes insurance carriers;
(B) The employer having been self-insured, becomes insured; or
(C) The employer having been insured, is approved to be self-insured; and
(2) One (1) of the following applies:
(A) The compensability of the claim is not being disputed by the employer or carrier; or
(B) A workers' compensation specialist has determined the claim to be compensable or ordered the provision of benefits to an employee; and
(3) There is a dispute as to which entity is responsible to provide workers' compensation benefits to a worker.
(b) Upon an agreement by the parties or a court order as to which entity is responsible to pay the workers' compensation benefits to the employee, the entity responsible for the provision of workers' compensation benefits shall reimburse the other entity all moneys paid for or on behalf of the employee as ordered by the commissioner or the commissioner's designee, plus interest from the date of payment at the rate set by § 47-14-121.
(a) This section may be referred to as the “Rental and Assignment of PPO Network Rights.”
(b) For purposes of this section, unless the context otherwise requires:
(1) “Contracting agent” means any person that is in direct privity of contract with a medical provider to reimburse the medical provider for medical services provided to an injured worker pursuant to this chapter at rates other than those provided under the workers' compensation medical fee schedule. Nothing contained within this section shall be construed to permit the creation of preferred provider organization networks that permit payments above the medical fee schedule adopted by the department; and
(2) “Workers' compensation payor” means an employer, workers' compensation trust, workers' compensation pool or insurer responsible pursuant to § 50-6-405 for paying a medical provider for the delivery of workers' compensation related healthcare services.
(c) Every contracting agent that sells, leases, assigns, transfers, or conveys its list of contracted medical providers and their contracted reimbursement rates shall, upon entering or renewing a medical provider contract, do all of the following:
(1) Disclose to the medical provider whether the list of contracted medical providers may be sold, leased, transferred, or conveyed to other payors or agents, including workers' compensation insurers or self insureds. The disclosure of the ability to sell, lease, transfer or convey the list or network of medical providers shall be in a section of a contract titled “assignment” or “assignability” or similar title;
(2) Disclose whether workers' compensation payors to whom the list of contracted medical providers may be sold, leased, transferred, or conveyed may be permitted to pay a medical provider's contracted rate if less than the workers' compensation fee schedule. The disclosure of the ability to pay a medical provider's contracted rate, if less than the workers' compensation fee schedule, shall be in a section of a contract titled “assignment” or “assignability” or similar title;
(3) Allow medical providers, upon the initial signing or renewal of a medical provider contract, to decline to participate in networks solely to serve workers' compensation payors that are sold, leased, transferred, or conveyed to workers' compensation payors; and
(4) Maintain a web page that contains a complete listing of customers to whom the network is sold, leased, transferred or conveyed that is accessible to all contracted medical providers and updated at least twice a year, as well as maintain a toll-free telephone number accessible to all contracted medical providers whereby medical providers may access workers' compensation payor summary information and a list of lessees of the network.
(d)(1) The explanation of payment (EOP) or explanation of review (EOR) transmitted to the medical provider shall delineate the following information:
(A) Employer's name;
(B) Injured worker's name;
(C) Name of the workers' compensation payor and the name of the third party administrator if a third party administrator is utilized. If a third party administrator is utilized, then a telephone number for the third party administrator shall be delineated; otherwise, a telephone number for the workers' compensation payor shall be delineated;
(D) Name and telephone number of the entity that analyzes the medical provider bill for the purpose of ensuring that the billed amount complies with the workers' compensation medical fee schedule;
(E) Name and telephone number of the contracting agent that has a written medical provider contract signed by the medical provider whereby the contracting agent or a third party is entitled to access and pay rates other than those provided under the workers' compensation medical fee schedule;
(F) Name and telephone number of the entity that analyzes the medical provider bill for the purpose of reducing the billed amount below the medical fee schedule pursuant to a preferred provider organization network contract, unless the entity is the same entity referenced in subdivision (d)(1)(E);
(G) Amount billed by the medical provider;
(H) Amount permitted by the workers' compensation fee schedule; and
(I) Amount of payment.
(2) Within twenty (20) calendar days of a medical provider submitting in writing to a workers' compensation payor an EOP or EOR that does not comply with subdivision (d)(1), the entity that originally generated the EOP or EOR shall issue to the medical provider a corrected EOP or EOR that complies with subdivision (d)(1).
(3) A workers' compensation payor shall demonstrate that it is entitled to pay a contracted rate within thirty (30) days of receipt of a written request from a medical provider who has received a claim payment from the workers' compensation payor. The medical provider shall include in the request a statement explaining why the payment is not at the correct contracted rate for the services provided. The failure of the medical provider to include such a statement shall relieve the workers' compensation payor from the responsibility of demonstrating that it was entitled to pay the disputed contracted rate. A workers' compensation payor shall be deemed to have demonstrated that it is entitled to pay a contracted rate if it correctly identifies the contracting agent that originally entered into the contract with the medical provider to pay the claim at the contracted rate.
(a) Whenever payment of compensation is made to a surviving spouse for the surviving spouse's use, or for the surviving spouse's use and the use of a child or children, the written receipt of the payment by the surviving spouse shall acquit the employer in this and all other jurisdictions of the entire injury and all its damages.
(b) Whenever payment is made to any person eighteen (18) years of age or over, the written receipt of the person shall acquit the employer in this and all other jurisdictions of the entire injury and all its damages.
(c)(1) Whenever payment is made to a person under eighteen (18) years of age, or to a dependent child as defined in § 50-6-210(b) over eighteen (18) years of age, the payment shall be paid to a duly and regularly appointed guardian or trustee of the child, and the receipt of the guardian or trustee shall acquit the employer in this and all other jurisdictions of the entire injury and all its damages and shall be in lieu of any claim of the parents of the child or minor for loss of services.
(2) Where the amount of compensation due a person under eighteen (18) years of age does not exceed the sum of two hundred fifty dollars ($250), the court may, in its discretion, direct the amount of compensation due the minor be paid as provided by title 34, chapter 1.
1919 Pub.Acts, c. 123, § 7; 1947 Pub.Acts, c. 139, § 3; 1997 Pub.Acts, c. 368, §§ 1 to 3, eff. June 2, 1997.
Formerly Shannon's Code Supp., § 3608a156; 1932 Code, § 6858; 1950 Code Supp., § 6858; § 50-1014.
All rights of compensation granted by this chapter shall have the same preference or priority for the whole thereof against the assets of the employer as is allowed by law for any unpaid wages for labor.
1919 Pub.Acts, c. 123, § 17; 1972 Pub.Acts, c. 699, § 4.
Formerly Shannon's Code Supp., § 3608a166; 1932 Code, § 6868; § 50-1015.
(a) No claim for compensation under this chapter shall be assignable, and all compensation and claims for compensation shall be exempt from claims of creditors.
(b) Notwithstanding subsection (a), compensation made by periodic payments shall be subject to income assignment for payment of support as provided by title 36, chapter 5, part 5 and § 50-2-105.
(c) Notwithstanding subsection (a), the department of human services shall have a lien on any lump-sum settlements for the collection of current or overdue support as defined by § 36-5-113, and may enforce the lien as provided by title 36, chapter 5, part 9.
1919 Pub.Acts, c. 123, § 17; 1991 Pub.Acts, c. 224, § 1;1998 Pub.Acts, c. 1098, § 61, eff. May 19, 1998.
Formerly Shannon's Code Supp., § 3608a167; 1932 Code, § 6869; § 50-1016.
(a) The time within which the following acts shall be performed under this chapter shall be limited to the following periods, respectively:
(1) Actions or proceedings by an injured employee to determine or recover compensation: one (1) year after the occurrence of the injury, except as provided in § 50-6-203;
(2) Actions or proceedings by dependents to determine or recover compensation: one (1) year after the date of notice in writing given by the employer to the division of workers' compensation, stating the employer's willingness to pay compensation when it is shown that the death is one for which compensation is payable. In case the deceased was a native of a foreign country and leaves no known dependent or dependents within the United States, it shall be the duty of the commissioner to give written notice forthwith of the death to the consul or other representative of the foreign country residing within the state;
(3) Proceedings to obtain judgment in case of default of employer for thirty (30) days to pay any compensation due under any settlement or determination: one (1) year after the default; and
(4) In case of physical or mental incapacity, other than minority, of the injured person or the injured person's dependents to perform or cause to be performed any act required within the time in this section specified: the period of limitation in those cases shall be extended for one (1) year from the date when the incapacity ceases.
(b) This section applies only to injuries that arise on or before December 31, 2004, and shall have no applicability to injuries that arise on or after January 1, 2005.
1919 Pub.Acts, c. 123, § 31; 1927 Pub.Acts, c. 40, § 4; 1947 Pub.Acts, c. 139, § 11; impl. am. by 1980 Pub.Acts, c. 534, § 1; 1999 Pub.Acts, c. 520, § 41, eff. June 17, 1999; 2004 Pub.Acts, c. 962, § 15.
Formerly Shannon's Code Supp., § 3608a182; 1932 Code, § 6884; 1950 Code Supp., § 6884; § 50-1017.
(a)(1) Notwithstanding any provisions of this chapter to the contrary, in case of a dispute over or failure to agree upon compensation under this chapter, between the employer and employee or the dependent or dependents of the employee, the parties shall first submit the dispute to the benefit review conference process provided by the division of workers' compensation.
(2)(A) In the event the parties are unable to reach an agreement at the benefit review conference as to all issues related to the claim or the benefit review conference process is otherwise exhausted pursuant to rules promulgated by the commissioner, either party may file a civil action as provided in § 50-6-203 in the circuit or chancery court in the county in which the employee resided at the time of the alleged injury or in which the alleged injury occurred. In instances where the employee resides outside of the state and where the injury occurs outside of the state, the complaint shall be filed in any county where the employer maintains an office.
(B) If the parties are unable to reach an agreement at the benefit review conference as to all issues related to the claim or the benefit review conference process is otherwise exhausted pursuant to rules promulgated by the commissioner, and if the employer is a county or a municipal corporation that has accepted the provisions of this chapter, either party may file a civil action in the county in which the governmental entity is located or in the county in which the incident occurred from which the civil action arises.
(3) Neither party in a civil action filed pursuant to this section shall have the right to demand a jury.
(b) The Tennessee Rules of Civil Procedure and the Tennessee Rules of Evidence apply to all civil actions filed pursuant to this section.
(c) Unless required to be filed by an earlier date as a result of discovery requests pursuant to the Tennessee Rules of Civil Procedure, within sixty (60) days after the filing of an answer in an action under this section, the employer shall file with the court a wage statement detailing the employee's wages for the previous fifty-two (52) weeks, unless the employer stipulates that the maximum weekly workers' compensation rate applies in the particular action.
(d) Whenever any civil action is brought pursuant to this section, the judge or chancellor may, if the judge or chancellor so desires, visit the scene of the accident and examine the surroundings.
(e)(1) Any party to the proceedings in the circuit or chancery court may, if dissatisfied or aggrieved by the judgment or decree of that court, appeal to the supreme court, where the cause shall be heard and determined as provided in the Tennessee Rules of Appellate Procedure.
(2) Review of the trial court's findings of fact shall be de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise.
(3) The supreme court may, by order, refer workers' compensation cases to a panel known as the special workers' compensation appeals panel. This panel shall consist of three (3) judges designated by the chief justice, at least one (1) of whom shall be a member of the supreme court.
(4) Any case that the supreme court by order or rule refers to the special workers' compensation appeals panel shall be briefed, and oral argument shall be heard pursuant to the Tennessee Rules of Appellate Procedure as if the appeal were being heard by the entire supreme court.
(5)(A) The special workers' compensation appeals panel shall reduce to writing its findings and conclusions in all cases. The decision of the panel shall become the judgment of the supreme court thirty (30) days after it is issued unless:
(i) Any member of the supreme court files with the clerk a written request within the thirty-day period that the case be heard by the entire supreme court, in which event a final judgment will not be entered until the supreme court, after due consideration of the case, enters final judgment; or
(ii) Any party to the appeal files a motion requesting review by the entire supreme court within fifteen (15) days after issuance of the decision by the panel, in which event a final judgment will not be entered:
(a) Until the motion is denied; or
(b) If the motion is granted, until the supreme court enters final judgment after its consideration of the case.
(B) For purposes of this subsection (e), a decision of the panel shall be deemed to be issued on the day it is mailed to the parties, which date shall be noted on the decision by the clerk.Section 27-1-122 applies to all motions made pursuant to this subsection (e).
(6) If the entire supreme court, on its own motion or after granting the motion of a party, reviews an opinion of the special workers' compensation appeals panel, its review will be limited to the record and the briefs on file before the special workers' compensation appeals panel; provided, that the supreme court may, in its discretion, order the parties to further brief the issues or appear at oral argument.
(f) The trial of all cases under this chapter shall be expedited by:
(1) Giving the cases priority over all cases on the trial and appellate dockets; and
(2) Allowing any case on appeal in the supreme court to be on motion of either party transferred to the division where the supreme court is then or will next be in session.
(g)(1) If the judgment or decree of a court is appealed pursuant to subsection (e), interest on the judgment or decree shall be computed from the date that the judgment or decree is entered by the trial court at an annual rate of interest five (5) percentage points above the average prime loan rate for the most recent week for which such an average rate has been published by the board of governors of the federal reserve system on the total judgment awarded by the supreme court. For purposes of calculating the accrual of interest pursuant to this subdivision (g)(1), the average prime loan rate on the day the judgment or decree is entered by the trial court shall be used.
(2) Total judgment awarded is computed by the total number of weeks multiplied by the benefit rate without any reduction.
(3) For purposes of determining the amount of interest that has accrued on a judgment or decree, the commissioner of financial institutions shall maintain a listing of the average prime loan rate as it becomes available each month, and the commissioner of financial institutions shall respond to inquiries concerning what the average prime rate was on a given month and year. If the person making the inquiry so requests, the commissioner shall send the person a letter certifying what the average prime rate was on the month and year requested. The commissioner is authorized to charge a reasonable fee not to exceed ten dollars ($10.00) for preparing and sending the letter.
(4) For purposes of this subsection (g), “judgment” and “decree” includes any discretionary costs awarded pursuant to this chapter.
(h) When a reviewing court determines pursuant to motion or sua sponte that the appeal of an employer or insurer is frivolous, or taken for purposes of delay, a penalty may be assessed by the court, without remand, against the appellant for a liquidated amount.
(i) When a reviewing court determines pursuant to motion or sua sponte that the appeal of an employee is frivolous, a penalty may be assessed by the court, without remand, against the appellant for a liquidated amount.
(j) If an employer wrongfully fails to pay an employee's claim for temporary total disability payments, the employer shall be liable, in the discretion of the court, to pay the employee, in addition to the amount due for temporary total disability payments, a sum not exceeding twenty-five percent (25%) of the temporary total disability claim; provided, that it is made to appear to the court that the refusal to pay the claim was not in good faith and that the failure to pay inflicted additional expense, loss or injury upon the employee; and provided, further, that the additional liability shall be measured by the additional expense thus entailed.
(k) If, on request by the specialist, a party fails to produce documents, to cooperate in scheduling a conference or to provide a representative authorized to settle a matter in attendance at a conference, then a specialist may declare an impasse and file the report on unresolved issues with a court. On the motion of either party or on the court's own motion, a court is authorized, but not required, to hold a hearing on the failure to produce documents requested by the specialist, to cooperate in scheduling or to provide a representative who possessed settlement authority. If the court determines that the failure lacked good cause or resulted from bad faith, then the court may assess the offending party who failed to take the requested action with attorney's fees and costs related only to the trial. The commissioner is authorized to promulgate rules to effectuate the purposes of this subsection (k) in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
(l) If an employee receives a settlement, judgment or decree under this chapter that includes the payment of medical expenses and the employer or workers' compensation carrier wrongfully fails to reimburse an employee for any medical expenses actually paid by the employee within sixty (60) days of the settlement, judgment or decree, or fails to provide reasonable and necessary medical expenses and treatment, including failure to reimburse for reasonable and necessary medical expenses, in bad faith after receiving reasonable notice of their obligation to provide the medical treatment, the employer or workers' compensation carrier shall be liable, in the discretion of the court, to pay the employee, in addition to the amount due for medical expenses paid, a sum not exceeding twenty-five percent (25%) of the expenses; provided, that it is made to appear to the court that the refusal to pay the claim was not in good faith and that the failure to pay inflicted additional expense, loss or injury upon the employee.
1919 Pub.Acts, c. 123, § 32; 1941 Pub.Acts, c. 90, § 9; 1969 Pub.Acts, c. 311, § 1; 1981 Pub.Acts, c. 449, § 2; 1985 Pub.Acts, c. 393, §§ 14, 15, 23; 1988 Pub.Acts, c. 630, §§ 1, 2; 1992 Pub.Acts, c. 952, §§ 7, 8; 1996 Pub.Acts, c. 944, § 16, eff. July 1, 1996; 1997 Pub.Acts, c. 150, § 1, eff. July 1, 1997; 1998 Pub.Acts, c. 1024, § 14, eff. July 1, 1998; 1999 Pub.Acts, c. 336, §§ 1, 2, eff. July 1, 1999; 1999 Pub.Acts, c. 520, § 41, eff. July 1, 1999; 2000 Pub.Acts, c. 678, § 1, eff. July 1, 2000; 2000 Pub.Acts, c. 739, § 1, eff. July 1, 2000; 2000 Pub.Acts, c. 852, §§ 7, 8, eff. May 31, 2000; 2001 Pub.Acts, c. 117, § 1, eff. April 18, 2001; 2004 Pub.Acts, c. 962, §§ 16, 49; 2005 Pub.Acts, c. 28, § 1, eff. July 1, 2005; 2006 Pub.Acts, c. 703, § 1, eff. July 1, 2006; 2008 Pub.Acts, c. 1183, §§ 5, 6, eff. June 19, 2008; 2012 Pub.Acts, c. 1030, § 1, eff. May 21, 2012.
Formerly Shannon's Code Supp., § 3608a1821/2; 1932 Code, § 6885; 1950 Code Supp., § 6885; § 50-1018.
(a)(1) The fees of attorneys for services to employees under this chapter, shall be subject to the approval of the commissioner or the court before which the matter is pending, as appropriate; provided, that no attorney's fees to be charged employees shall be in excess of twenty percent (20%) of the amount of the recovery or award to be paid by the party employing the attorney. All attorney's fees for attorneys representing employers shall be subject to review for reasonableness of the fee and shall be subject to approval by a court when the fee exceeds ten thousand dollars ($10,000).
(2)(A) Medical costs that have been voluntarily paid by the employer or its insurer shall not be included in determining the award for purposes of calculating the attorney's fee.
(B) For cases submitted to the department for approval pursuant to § 50-6-206(c) that are resolved prior to trial or pursuant to a benefit review conference, the department shall deem the attorney's fee to be reasonable if the fee does not exceed twenty percent (20%) of the award to the injured worker, or, in cases governed by § 50-6-207(4), twenty percent (20%) of the first four hundred (400) weeks of the award.
(C) In cases that proceed to trial, an employee's attorney shall file an application for approval of a proposed attorney's fee. Where the award of an attorney's fee exceeds ten thousand dollars ($10,000), the court shall make specific findings as to the factors that justify the fee as provided in Tennessee Supreme Court Rule 8, RPC 1.5.
(D) The final order or settlement in all workers' compensation cases shall set out the attorney portion of the award in both dollar and percentage terms and the required findings.
(3) In accident cases that result in death of an employee, the plaintiff's attorney's fees shall not exceed reasonable payment for actual time and expenses incurred when the employer makes a voluntary settlement offer in writing to dependents or survivors eligible under § 50-6-210 within thirty (30) days of the employee's death if the employer offers to provide the dependents or survivors with all the benefits provided under this chapter. The approving authority shall review and approve the settlements on an expedited basis.
(4) The fees of physicians and charges of hospitals for services to employees under this chapter, shall be subject to the approval of the commissioner or the court before which the matter is pending, as appropriate, as provided in this subdivision (a)(4). Unless a medical fee or charge is contested, the department shall deem it to be reasonable. If a fee or charge is contested, the department shall permit a party to seek review only of the contested fee or charge in any court with jurisdiction to hear a matter pursuant to § 50-6-225. A court may review the case solely for the purpose of approving the fees and charges that are reasonable.
(b) The charging or receiving of any fee by an attorney in violation of subsection (a) shall be deemed unlawful practice and render the attorney liable to disbarment; and, further, the attorney shall forfeit double the entire amount retained by the attorney, to be recovered as in case of debt by the injured person or the injured person's creditor.
(c)(1) The fees charged to the claimant by the treating physician or a specialist to whom the employee was referred for giving testimony by oral deposition relative to the claim shall, unless the interests of justice require otherwise, be considered a part of the costs of the case, to be charged against the employer when the employee is the prevailing party.
(2) The trial judge shall have the discretion to determine the reasonableness of the fee charged by any physician pursuant to this subsection (c).
(3) This subsection (c) apply only to workers' compensation actions arising on or after July 1, 1988.
1919 Pub.Acts, c. 123, § 33; 1957 Pub.Acts, c. 121, § 1; 1963 Pub.Acts, c. 333, § 2; impl. am. by 1980 Pub.Acts, c. 534, § 1; 1988 Pub.Acts, c. 865, §§ 1 to 3; 1996 Pub.Acts, c. 944, § 17, eff. Jan. 1, 1997; 1999 Pub.Acts. c. 520, § 41, eff. June 17, 1999; 2003 Pub.Acts, c. 112, § 4, eff. May 12, 2003; 2007 Pub.Acts, c. 300, §§ 2, 3, eff. May 30, 2007.
Formerly Shannon's Code Supp., § 3608a183; 1932 Code, §§ 6886, 6887; §§ 50-1019, 50-1020.
(a)(1)(A) In the event compensation is payable due to the death of an employee under this chapter, and the decedent leaves an alien dependent or dependents residing outside of the United States, a workers' compensation specialist is authorized to conduct a benefit review conference to attempt to resolve the issues; provided, that a representative or representatives of the employer and a duly authorized representative or representatives of the consul or other representative of the foreign country in which the dependent or dependents resides are present. In the event a settlement agreement is reached, the commissioner or commissioner's designee is authorized to approve the settlement, and the order of the commissioner or the commissioner's designee shall be entitled to the same standing as a judgment of a court of record for all purposes. In the event the parties are unable to reach an agreement at the benefit review conference, the employer or employee's representative may file a complaint in the circuit or chancery court that would have jurisdiction of the matter pursuant to § 50-6-225 requesting the court to hear and determine the matter.
(B) The commissioner, or commissioner's designee, or the court shall order payment of any compensation due from the employer to be made to the duly accredited consular officer of the country of which the beneficiaries are citizens. The consular officer or the consular officer's representative shall be fully authorized and empowered by this law to settle all claims for compensation and to receive the compensation for distribution to the persons entitled to the compensation.
(2) The distribution of funds in cases described in subdivision (a)(1) shall be made only upon the order of the commissioner, the commissioner's designee, or the court that heard the matter. If required to do so by the commissioner, the commissioner's designee, or the court, the consular officer or the consular officer's representative shall execute a good and sufficient bond to be approved by the commissioner, the commissioner's designee, or the court, conditioned upon the faithful accounting of the moneys so received by the consular officer or the consular officer's representative. Before the bond is discharged a verified statement of receipts and disbursements of the moneys shall be made and filed with the commissioner or the court, as appropriate.
(b) The consular officer or the consular officer's representative shall, before receiving the first payment of the compensation, and at reasonable times thereafter, upon the request of the employer, furnish to the employer a sworn statement containing a list of the dependents with the name, age, residence, extent of dependency and relation to the deceased of each dependent.
1919 Pub.Acts, c. 123, § 34; impl. am. by 1980 Pub.Acts, c. 534, § 1; 2004 Pub.Acts, c. 962, § 17.
Formerly Shannon's Code Supp., § 3608a184; 1932 Code, § 6888; § 50-1021.
Copies of all settlements and releases shall be filed by the employer with the division of workers' compensation, within ten (10) days after the settlements are made, and shall become part of the permanent records of the division.
1919 Pub.Acts, c. 123, § 35; 1927 Pub.Acts, c. 40, § 5; impl. am. by 1980 Pub.Acts, c. 534, § 1; 1999 Pub.Acts, c. 520, § 41, eff. June 17, 1999.
Formerly Shannon's Code Supp., § 3608a185; 1932 Code, § 6889; § 50-1022.
(a) The amounts of compensation payable periodically under this chapter may be commuted to one (1) or more lump sum payments. These may be commuted upon motion of any party subject to the approval of the circuit, chancery or criminal court. No agreed stipulation or order or any agreement by the employer and employee or any other party to the proceeding shall be a prerequisite to the court's approval or disapproval of the award being paid in one (1) or more lump sum payments. In making the commutation, the lump sum payment shall, in the aggregate, amount to a sum of all future installments of compensation. No settlement or compromise shall be made except on the terms provided in this chapter. In determining whether to commute an award, the trial court shall consider whether the commutation will be in the best interest of the employee, and the court shall also consider the ability of the employee to wisely manage and control the commuted award, regardless of whether special needs exist. Attorneys' fees may be paid as a partial lump sum from any award when approved and ordered by the trial judge.
(b)(1) Certified copies of the pleadings, orders, judgments and decrees, whereby any lump sum payment settlement has been approved by the court, shall be forwarded to the division of workers' compensation by the employer within ten (10) days after the entry of any final judgment in the proceeding.
(2) The administrator shall have thirty (30) days after the receipt of the certified copies of the proceedings within which to intervene in the lump sum settlement proceedings to secure a readjustment of the lump sum in accordance with the requirements and provisions of this law, whether court shall have adjourned or not, § 50-6-230 to the contrary notwithstanding.
1919 Pub.Acts, c. 123, § 36; 1947 Pub.Acts, c. 139, § 12; 1971 Pub.Acts, c. 300, § 2; 1979 Pub.Acts, c. 295, § 1; impl. am. by 1980 Pub.Acts, c. 534, § 1; 1983 Pub.Acts, c. 217, § 5; 1985 Pub.Acts, c. 393, § 16; 1990 Pub.Acts, c. 843, § 1;1992 Pub.Acts, c. 900, § 25;1999 Pub.Acts, c. 520, § 41, eff. June 17, 1999.
Formerly Shannon's Code Supp., § 3608a186; 1932 Code, § 6890; 1950 Code Supp., § 6890; § 50-1023.
All settlements of compensation by agreement of the parties and all awards of compensation made by the court, where the amount paid or to be paid in settlement or by award does not exceed the compensation for six (6) months' disability, shall be final and not subject to readjustment.
1919 Pub.Acts, c. 123, § 37.
Formerly Shannon's Code Supp., § 3608a187; 1932 Code, § 6891; § 50-1024.
All amounts paid by the employer and received by the employee or the employee's dependents, by lump sum payments, shall be final, but the amount of any award payable periodically for more than six (6) months may be modified as follows:
(1) At any time by agreement of the parties and approval by the court; or
(2) If the parties cannot agree, then at any time after six (6) months from the date of the award an application may be made to the courts by either party, on the ground of increase or decrease of incapacity due solely to the injury. In those cases, the same procedure shall be followed as in § 50-6-225 in case of a disputed claim for compensation.
1919 Pub.Acts, c. 123, § 38.
Formerly Shannon's Code Supp., § 3608a188; 1932 Code, § 6892; § 50-1025.
(a) Any time after the amount of any award has been agreed upon by the parties, or found and ordered by the court, a sum of all future installments of compensation may, where death or the nature of the injury renders the amount of future payments certain, by leave of court, be paid by the employer to any savings bank or trust company of this state to be approved and designated by the court, and the sum, together with all interest on the sum, shall be held in trust for the employee or the dependents of the employee who shall have no further recourse against the employer.
(b) The payment of the sum by the employer evidenced by the receipts in duplicate of the trustee, one (1) of which shall be filed with the division of workers' compensation, and the other filed with the clerk of the circuit court, shall operate as a satisfaction of the award as to the employer.
(c) Payments from the fund shall be made by the trustee in the same amounts and at the same time as are required of the employer until the fund interest is exhausted.
(d) In the appointment of the trustee, preference shall be given, in the discretion of the court, to the choice of the injured employee or the dependent of the deceased employee, as the case may be.
1919 Pub.Acts, c. 123, § 39; impl. am. by 1923 Pub.Acts, c. 7, §§ 55, 56; 1971 Pub.Acts, c. 300, § 3; impl. am. by 1980 Pub.Acts, c. 534, § 1; 1985 Pub.Acts, c. 393, § 21.
Formerly Shannon's Code Supp., § 3608a189; 1932 Code, § 6893; § 50-1026.
(a)(1) There is conferred upon the commissioner the power to enforce this chapter that relate to the assurance of payments of the awards under this chapter.
(2) The commissioner has the power, subject to the approval of the governor, to employ clerical assistance the commissioner deems necessary and fix the compensation of the person or persons so employed.
(3) The commissioner may make rules and regulations not inconsistent with this law for the purpose of discharging the commissioner's duties under this chapter.
(4) The commissioner may provide forms for the use of employers and other literature that may be necessary and shall furnish to any employee or employer literature and blank forms that the commissioner deems requisite to facilitate or promote the efficient administration of this chapter.
(5) In no event shall the division of workers' compensation charge a fee or impose a cost for any necessary or required forms needed to process a workers' compensation claim.
(6) The commissioner shall modify Form #C32 to include a location for a health care provider to indicate temporary total disability and the point at which the employee reached maximum medical improvement.
(b) The commissioner shall cause the division of workers' compensation to refer all feasible cases for vocational rehabilitation to the department of education.
(c) In addition to the rulemaking authority granted in § 50-6-118, and subsection (a), the commissioner or the commissioner of commerce and insurance, as appropriate, may promulgate rules and regulations implementing this chapter. The rules and regulations shall be promulgated pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. The commissioner's rules and regulations shall include, but not be limited to, the rules and regulations:
(1) Establishing minimum qualifications and training for workers' compensation specialists;
(2) Establishing procedures for benefit review conferences including the time within which all conferences must be held and the times within which copies of reports and agreements must be filed with the commissioner. The rules shall prescribe a mechanism by which written notice of all conferences, copies of agreements, and copies of reports shall be provided to the insurer, the employee, the employer, and any party to a claim. The rules shall provide guidelines relating to claims that do not require a benefit review conference;
(3) To provide a civil penalty for parties to a claim who fail to attend a properly scheduled and noticed conference;
(4) To provide a procedure to withhold payment from a health care provider for over-utilization of medical care or services or for ordering inappropriate medical care or services;
(5) To provide an appeal procedure for a health care provider who has had payment withheld for over-utilization of medical care or services;
(6) To provide a system of case management to coordinate the medical care services provided to employees claiming benefits under this chapter. The rules and regulations shall establish a threshold of medical expenses and services or other appropriate point over which all cases will be subject to case management;
(7) To ensure health care providers' compliance with § 50-6-204(a)(4), and rules and regulations to provide an appeal procedure for a health care provider who has had payment withheld for charging amounts found to be excessive; provided, that no rule promulgated pursuant to this subdivision (c)(7) shall be filed with the secretary of state after approval by the attorney general and reporter, pursuant to §§ 4-5-207 and 4-5-211, unless also approved by the medical care and cost containment committee established by § 50-6-125; and
(8) To establish a civil penalty, to be assessed at the discretion of the commissioner, against a provider who has, after proper notification and appropriate time to respond, refused to make repayment to a payor for a payment that exceeds the medical fee schedule after exhausting all appeals. Under no circumstances shall a provider be assessed a civil penalty solely for receiving payment from a payor that exceeds the medical fee schedule.
1919 Pub.Acts, c. 123, § 46; impl. am. by 1923 Pub.Acts, c. 7, §§ 2, 50; 1941 Pub.Acts, c. 90, § 12; 1972 Pub.Acts, c. 699, § 5; impl. am. by 1980 Pub.Acts, c. 534, § 1; 1983 Pub.Acts, c. 215, § 3; 1992 Pub.Acts, c. 900, § 3;1999 Pub.Acts, c. 242, § 2, eff. July 1, 1999; 1999 Pub.Acts, c. 265, § 3, eff. May 26, 1999; 1999 Pub.Acts, c. 520, § 41, eff. June 17, 1999; 2006 Pub.Acts, c. 687, § 1, eff. May 18, 2006.
Formerly Shannon's Code Supp., § 3608a196; 1932 Code, § 6900; 1950 Code Supp., § 6900; § 50-1028.
(a) In any case where the employer has commenced paying temporary disability benefits to the employee and has then stopped or changed the benefits for any cause other than failure of an employee to submit to employer requests for reasonable medical examinations by the treating physician or final settlement, the employee may petition a court of proper jurisdiction to order that the employer show good cause why the temporary benefits should not be resumed or increased.
(b) Upon a hearing, the court is authorized to award the resumption or increase of the benefits to the employee from the employer.
(c) The hearing shall be held within twenty (20) days after the petition is filed.
(d) After temporary disability payments have commenced, when the injured employee reaches maximum medical improvement, a permanent impairment rating is given and the compensability of the injury has not been contested by the employer, then payments shall continue until the earlier of the following events: the injured employee accepts or rejects a job offered by the employer at a wage equal to or greater than the employee's pre-injury wage, if the employee is able to perform the duties of the position within any restrictions placed on the employee by the physician selected pursuant to § 50-6-204; or a benefit review conference is held and the report is filed pursuant to § 50-6-240. In no case may temporary payments pursuant to this subsection (d) exceed the lesser of sixty (60) days or the value of the employee's permanent partial disability award calculated solely upon the medical impairment; provided, that these limits may be exceeded if agreed to by all parties. The amount of the payment shall be credited against any permanent award. For purposes of this subsection (d), the determination of attainment of maximum medical improvement and the employee's medical impairment shall be made by the physician selected in accordance with § 50-6-204. Nothing in this subsection (d) shall require an employer to return any employee to work.
1990 Pub.Acts, c. 656, § 1;1996 Pub.Acts, c. 944, § 21, eff. July 1, 1996; 2006 Pub.Acts, c. 1014, § 4, eff. June 27, 2006.
(a)(1) If a physician refuses to make a reasonable effort to give a deposition in a workers' compensation case within ninety (90) days of receipt of notice, the employee may petition the court for an order requiring the physician to give the deposition.
(2) If the physician does not respond to the petition in a timely fashion, the physician may lose the exemption from subpoena to trial established by § 24-9-101.
(b) For the purpose of subsection (a), the requirement that the physician make a reasonable effort to give a deposition may be presumed to be satisfied if the physician offers to be available to give the physician's deposition within ninety (90) days' of notice at two (2) or more reasonable places and at times within normal business hours, but because of scheduling difficulties on the part of any of the other persons who wish to be present at the deposition, the deposition cannot take place at either of the times and places offered by the physician.
(c)(1) Any party may introduce direct testimony from a physician through a written medical report on a form established by the commissioner. The commissioner shall establish by rule the form for the report. All parties shall have the right to take the physician's deposition on cross examination concerning its contents. Any written medical report sought to be introduced as evidence shall be signed by the physician making the report bearing an original signature. A reproduced medical report that is not originally signed is not admissible as evidence unless accompanied by an originally signed affidavit from the physician or the submitting attorney verifying the contents of the report. Any written medical report sought to be introduced into evidence shall include within the body of the report or as an attachment a statement of qualifications of the person making the report. The commissioner shall, by regulation, fix the fee to be charged by the physician for the preparation and filing of the report and fix penalties for a failure to file the report after a timely request for it by any interested party.
(2) The written medical report of a treating or examining physician shall be admissible at any stage of a workers' compensation claim in lieu of a deposition upon oral examination, if notice of intent to use the sworn statement is provided to the opposing party or counsel not less than twenty (20) days before the date of intended use. If no objection is filed within ten (10) days of the receipt of the notice, the sworn statement shall be admissible as described in this subsection (c). In the event that a party does object, then the objecting party shall depose the physician within a reasonable period of time or the objection shall be deemed to be waived.
(d) The medical care and cost containment committee established in § 50-6-125 shall establish a schedule by rule for reasonable charges by physicians for preparing and giving depositions in workers' compensation cases. The schedule may be subject to annual revision. Physicians shall not be permitted to charge more than the amount permitted under the schedule. The rule shall be subject to the approval of the commissioner, including annual revisions.
1990 Pub.Acts, c. 656, § 2;1992 Pub.Acts, c. 900, § 22;1996 Pub.Acts, c. 944, § 18, eff. July 1, 1996; 1997 Pub.Acts, c. 533, § 5, eff. June 19, 1997, 1999 Pub.Acts, c. 520, § 41, eff. June 17, 1999.
(a) The commissioner shall establish a workers' compensation specialist program to assist injured or disabled employees, persons claiming death benefits, employers and other persons in protecting their rights and obtaining information available under workers' compensation laws.
(b) A workers' compensation specialist shall meet with or otherwise provide information to or receive information from injured or disabled employees, employers, insurance carriers and health care providers on behalf of injured or disabled employees. The specialist shall conduct informal dispute resolution by holding benefit review conferences throughout the state. The conference shall be held in the county where the employee lives, unless otherwise agreed to between the parties, or otherwise directed by the commissioner.
(c) Any person employed as a specialist by the commissioner is ineligible to further handle cases that require the person's involvement during this employment as a specialist.
(d) A workers' compensation specialist shall examine any proposed settlement reached during the benefit review conference to determine whether the employee is receiving, substantially, the benefits provided by this chapter.
(e) Each employer shall notify the employer's employees of the workers' compensation specialist service in a manner prescribed by the commissioner. At a minimum, the notice shall include the posting of a notice in one (1) or more conspicuous places. The notice shall include a toll-free number for employees to reach a workers' compensation specialist. The commissioner shall also describe clearly the availability of the workers' compensation specialist on the first report of accident form required by this chapter.
(f) Workers' compensation specialists shall conduct benefit review conferences. The commissioner shall institute and maintain an education and training program for workers' compensation specialists, who must be employees of the division. The specialists shall be trained in the principles and procedures of dispute mediation. The commissioner is authorized to consult or enter into contracts with the federal mediation and conciliation service or other appropriate organizations to accomplish this purpose.
(g) In conducting benefit review conferences, the workers' compensation specialist shall:
(1) Mediate disputes between the parties and assist in the adjustment of claims consistent with this chapter and the policies of the commissioner, before and after the benefit review conference;
(2) Thoroughly inform all parties of their rights and responsibilities under this chapter, including the right of any party to be represented by an attorney of the party's choice;
(3) Ensure that all documents and information relating to the employees' wages, medical condition, and any other information pertinent to the resolution of disputed issues are contained in the claim file at the conference, especially in cases in which the employee is not represented by an attorney; and
(4) Determine whether, under any proposed settlement, the employee is receiving, substantially, the benefits provided by this chapter.
(h) A benefit review conference shall be requested at any time within the limitation period or periods provided in §§ 50-6-203 or 50-6-306. A workers' compensation specialist shall have the authority to continue or reschedule a benefit review conference. A workers' compensation specialist shall also have the authority to cancel or waive a benefit review conference, solely within the discretion of that workers' compensation specialist.
(i) For the purpose of conducting discovery, workers' compensation specialists shall have the authority, either on their own or at the request of either party, to refer matters to a specially designated attorney within the department who may issue subpoenas, effect discovery, and issue protective orders in the same manner as an administrative judge or hearing officer pursuant to § 4-5-311.
(j) The workers' compensation specialist may not take testimony but may direct questions to an employee, an employer, or a representative of an insurance carrier to supplement or clarify information in a claim file.
(k) The workers' compensation specialist shall maintain a file concerning these proceedings.
(l) The workers' compensation specialist shall not engage in litigation or determination of workers' compensation claims outside of the workers' compensation specialist's duties as a workers' compensation specialist.
(m) The commissioner shall establish a program of continuing education and training for workers' compensation specialists in order to assure that specialists maintain current and appropriate skills and knowledge in performing their duties. The program of continuing education shall include, at a minimum, seven (7) hours of continuing education each fiscal year. The minimum seven (7) hours of education shall be specifically in the area of Workers' Compensation Law, compiled in this chapter, and shall be in addition to any mediation training provided to the specialists. Three (3) of the seven (7) hours of education shall be approved by the Tennessee commission on continuing legal education and specialization. In addition to the annual seven-hour continuing education requirement, each specialist hired by the department shall be provided, within one (1) month of the date of hire, formal training and education, which shall include training on the department's workers' compensation system, the Tennessee workers' compensation statutes and caselaw, and the rules and regulations of the division of workers' compensation. Documentation reflecting the type of education and training provided pursuant to this subsection (m) shall be maintained by the administrator of the division of workers' compensation. Documentation of each educational program shall include the date of the program, the name of each specialist attending, a description of the educational program including topics covered, the name of the sponsor or provider of the educational program and the number of hours for each educational program.
1992 Pub.Acts, c. 900, § 11;1996 Pub.Acts, c. 944, §§ 19, 20, eff. July 1, 1996; 1999 Pub.Acts, c. 242, § 1, eff. July 1, 1999; 1999 Pub.Acts, c. 520, § 41, eff. June 17, 1999; 2004 Pub.Acts, c. 962, §§ 18, 19; 2005 Pub.Acts, c. 390, § 8, eff. June 9, 2005.
(a) A benefit review conference is a nonadversarial, informal dispute resolution proceeding designed to:
(1) Explain, orally and in writing, the rights of the respective parties to a workers' compensation claim and the procedures necessary to protect those rights;
(2) Discuss the facts of the claim, review available information in order to evaluate the claim, and delineate the disputed issues;
(3) Mediate and resolve disputed issues by mutual agreement of the parties in accordance with this chapter and the policies of the commissioner;
(4) Provide an opportunity for, but not to compel, a binding settlement of some or all of the issues present at the time;
(5) Facilitate the resolution of issues without the expense of litigation or attorneys' fees for either party; and
(6) Determine, under any proposed settlement, whether any employee is receiving, substantially, the benefits provided by this chapter.
(b) Any person charging a fee specifically for the representation of an employee in any early dispute resolution proceeding or benefit review conference under this chapter shall be an attorney licensed to practice law in the state.
(c) When a benefit review conference is held, both the employee and the employer, or the employer's insurer, shall provide that a person with the authority to settle the dispute attends the conference. Parties entering into the benefit review conference process are required to mediate in good faith. Each party must be prepared to consider offers made by the other party. When a specialist determines that a party is not prepared to mediate as required or believes a party is not mediating in good faith, the specialist shall include comments to that effect in the report of the proceeding. Failure to comply with this section may subject the party or their representative to a civil penalty of not less than fifty dollars ($50.00) nor more than five thousand dollars ($5000).
1992 Pub.Acts, c. 900, § 12;2001 Pub.Acts, c. 244, § 1, eff. July 1, 2001; 2007 Pub.Acts, c. 513, § 2, eff. July 1, 2007.
(a)(1)(A) Any party or their attorney may request the assistance of a workers' compensation specialist in the determination of whether temporary disability or medical benefits are appropriate by filing with the division a form prescribed for that purpose by the commissioner.
(B)(i) For injuries occurring on or after July 1, 2008, if the request for the assistance of a workers' compensation specialist is filed pursuant to (a)(1)(A) within the time prescribed by § 50-6-203 or § 50-6-306, the time within which to file a request for a benefit review conference shall not expire before sixty (60) days after the issuance of a benefit review report by the workers' compensation specialist making the determination on the request for assistance.
(ii) Notwithstanding subdivision (a)(1)(B)(i), in no event shall the parties have less time to file a request for a benefit review conference than is prescribed by § 50-6-203 or § 50-6-306.
(C) With respect to the determination of whether to order the payment of temporary disability or medical benefits, a workers' compensation specialist shall not be an advocate for either party, but shall decide the issues solely on the basis of the information available to the specialist without favor or presumption for or against either party.
(2) If, in light of available information, a workers' compensation specialist determines that it is appropriate to order the payment of temporary disability benefits to an employee, then a workers' compensation specialist may order the initiation, continuation or reinstitution of the benefits by an employer or the employers' workers' compensation insurer.
(3) If, in light of available information, a workers' compensation specialist determines that it is appropriate to order the employer or insurer to provide medical benefits, the specialist's authority shall include, but not be limited to, the authority to order specific medical treatment recommended by the treating physician, and the authority to require the employer to provide the appropriate panel of physicians to the employee, including a panel of appropriate specialists. The workers' compensation specialist shall also have the authority to enforce the provision of the panel of physicians as required under § 50-6-204(a)(4).
(4) Any benefits ordered by a workers' compensation specialist as provided in this subsection (a) shall be ordered on a form prescribed by the commissioner.
(5) If, under all of the relevant circumstances, the specialist deems it to be appropriate, the specialist shall order the retroactive payment of benefits.
(6)(A) If a party submits information, including, but not limited to, written or electronic documents, medical records, video or audio tapes or X-rays, to a workers' compensation specialist who is considering whether to order temporary disability or medical benefits, or both, the party shall also provide a copy of the information submitted to the opposing party, or the opposing party's attorney, at the time the information is provided to the specialist or upon request by the opposing party or attorney, or both.
(B) Upon request, a workers' compensation specialist shall provide either the employee, the employer, the employer's insurer or attorneys representing any party, or all of these parties, an opportunity to review the information the specialist has in the department's file upon which the specialist may base a decision as to whether to order temporary disability or medical benefits, or both. The reviewing party shall have the right to request a copy of any document or record contained in the department's file.
(C) The department shall be entitled to charge a fee for copying and mailing the documents requested. The fee shall not exceed ten dollars ($10.00) for the first twenty-five (25) pages and a charge of twenty-five cents (25¢) for each page after twenty-five (25) pages. No additional fee shall be charged for postage. If the documents requested include videotapes, audiotapes or X-rays, the party who provided the video or audio tapes or X-rays to the specialist shall be required to provide a copy to the requesting party and the specialist shall have the authority to order the party to provide the tape or X-ray to the requesting party.
(b) If a specialist has ordered the payment of benefits pursuant to this section and a court subsequently finds that the employee was not entitled to the ordered benefits, then the entity or person who paid the benefits shall be entitled to a refund of all amounts paid pursuant to a specialist's order or orders. The refund shall be paid from the second injury fund established by § 50-6-208. The entity or person who paid the benefits pursuant to a specialist's order or orders is not entitled to receive the refund until the claim has been fully concluded by trial court or, if appealed, by the Tennessee supreme court. To receive the refund, the employer or employer's insurer shall send a certified copy of the final order of the trial or appellate court to the division of workers' compensation, by certified mail, return receipt requested. If the refund is not made within thirty (30) days of the date the certified mail was accepted by the division, then the employer or employer's insurer shall be entitled to interest at the rate of ten percent (10%) per annum from the date the refund became overdue.
(c) Evidence of the denial of initiation, continuation or reinstitution of compensation ordered pursuant to this section by a workers' compensation specialist is inadmissible in a subsequent proceeding. In a case where an employer or insurer has paid benefits pursuant to an order of a workers' compensation specialist, and the employer or insurer wishes to contest the compensability of the injury, then the court shall hear the issue de novo, and no presumption of correctness is given to any prior determination.
(d)(1)(A) If a specialist issues an order that denies the compensability of the employee's claim or denies workers' compensation benefits to the employee, the employee may request the administrator of the division of workers' compensation to administratively review the specialist's order by submitting a written request to the administrator in a format specified by the administrator. The written request shall be submitted to the administrator no later than seven (7) calendar days from the date on which the employee received the specialist's order denying compensability or benefits. If no written request to administratively review the order of a specialist is submitted to the administrator of the division of workers' compensation, the order of the specialist becomes final.
(B)(i) If a specialist issues an order for the payment of workers' compensation benefits pursuant to this section, the party against whom the order was issued may request the administrator of the division of workers' compensation to administratively review the specialist's order by submitting a written request to the administrator in a format specified by the administrator. The written request shall be submitted to the administrator no later than seven (7) calendar days from the date on which the party received the specialist's order that is the subject of the request.
(ii) If no written request to administratively review the order of a specialist is submitted to the administrator of the division of workers' compensation, as provided in this subsection (d), the party against whom a specialist has issued an order to provide or pay workers' compensation benefits shall comply with the order within fifteen (15) calendar days of the receipt of the order.
(iii) If a written request for administrative review of a specialist's order is submitted to the administrator of the division of workers' compensation, the party against whom a specialist has issued an order to provide or pay workers' compensation benefits is not required to comply with the specialist's order as outlined in subdivision (d)(1)(B)(ii).
(2)(A) After receipt of a written request for administrative review of a specialist's order, an informal conference with the affected parties shall be conducted by the administrator or the administrator's designee. The informal conference with the administrator or the administrator's designee shall occur within ten (10) calendar days of the date the administrator received the written request for administrative review. The administrator's designee shall be a Tennessee licensed attorney, shall have a minimum of five (5) years of experience with the Workers' Compensation Law, compiled in this chapter, and shall not be the specialist who issued the order that is the subject of administrative review.
(B) Within seven (7) calendar days following the conclusion of the informal conference, a written order shall be issued and signed by the administrator or administrator's designee. If the order issued and signed by the administrator or administrator's designee orders the payment of workers' compensation benefits to or on behalf of the employee, the party against whom the order is issued shall comply with the order within ten (10) calendar days of the receipt of the order of the administrator or administrator's designee.
(3) If an insurer, self-insured employer or self-insured pool fails to comply with an order issued by a specialist within fifteen (15) calendar days of receipt of the order, or fails to comply with an order issued by the administrator or administrator's designee within ten (10) calendar days of the receipt of the order, whichever is applicable, the commissioner shall assess a penalty in the amount of ten thousand dollars ($10,000). Notification of the assessed penalty shall be sent to the insurer, self-insured employer or self-insured pool by facsimile, electronic mail or certified mail. The insurer, self-insured employer or self-insured pool shall have five (5) calendar days from the receipt of the notification of penalty to respond and prove that it has complied with the specialist's order. If satisfactory proof of compliance is not received by the twenty-first calendar day after receipt of the notification of penalty, additional penalties in the amount of one thousand dollars ($1,000) per day shall begin to accrue on the twenty-first day. The insurer, self-insured employer or self-insured pool shall have the right to appeal the penalty assessed by the commissioner for failure to comply with an order issued by a specialist or by the administrator or administrator's designee pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
(4) In addition to any other penalty provided by law, if an insurer, self-insured employer or self-insured pool fails to comply with an order issued by a specialist or fails to comply with an order issued by the administrator or the administrator's designee within thirty (30) days of receipt of the order, the commissioner shall notify the commissioner of commerce and insurance of the failure to comply. The commissioner of commerce and insurance may consider the continued failure to comply with the order of the specialist or administrator or the administrator's designee as a violation of title 56, chapter 8, which subjects the insurer to the penalty provisions of § 56-8-109, and may consider any failure by a self-insured employer or self-insured pool to comply with the order of the specialist sufficient grounds to revoke the employer's status as a self-insured employer or self-insured pool pursuant to § 50-6-405.
1992 Pub.Acts, c. 900, § 13;1998 Pub.Acts, c. 1024, §§ 24, 25, eff. July 1, 1998; 1999 Pub.Acts, c. 265, §§ 1, 2, eff. May 26, 1999; 1999 Pub.Acts, c. 520, § 41, eff. June 17, 1999; 2000 Pub.Acts, c. 852, §§ 17 to 19, eff. July 1, 2000; 2001 Pub.Acts, c. 192, § 16, eff. July 1, 2001; 2004 Pub.Acts, c. 962, § 7;2006 Pub.Acts, c. 772, § 1, eff. May 26, 2006; 2006 Pub.Acts, c. 778, § 1, eff. May 24, 2006; 2006 Pub.Acts, c. 1014, § 2, eff. June 27, 2006; 2007 Pub.Acts, c. 403, § 2, eff. June 11, 2007; 2008 Pub.Acts, c. 1183, §§ 1 to 3, eff. June 19, 2008.
(a) In all cases in which the parties have any issues in dispute, whether the issues are related to medical benefits, temporary disability benefits, or issues related to the final resolution of a matter, the parties shall request the department to hold a benefit review conference.
(b) The parties to a dispute shall attend and participate in a benefit review conference that addresses all issues related to a final resolution of the matter as a condition precedent to filing a complaint with a court of competent jurisdiction, unless the benefit review conference process is otherwise exhausted pursuant to rules promulgated by the commissioner.
(c)(1) The division shall have the authority to schedule a date specific for the benefit review conference. The division shall endeavor to work with the parties or their representatives to schedule a date convenient to the parties, and the parties shall cooperate in scheduling the conference; however, in the event the parties cannot agree to a date within forty-five (45) days of the date a benefit review conference is requested or the date on which the employee reaches maximum medical improvement, whichever date is later, the division shall schedule the conference on a specific date and give the parties written notice of the date and the parties shall attend the benefit review conference on the date scheduled by the division.
(2) If a request for a benefit review conference is on file for a period in excess of one (1) year, the division shall have the authority to schedule a date specific for the benefit review conference and give the parties written notice at their last known address.
(3) If the division fails to conduct a benefit review conference within sixty (60) days of receipt of a request for a benefit review conference or the date on which the employee reaches maximum medical improvement, whichever date is later, the parties may agree to hire a private Rule 31 mediator to conduct the mediation. Any agreement reached through private Rule 31 mediation must be approved by a court or the department in accordance with § 50-6-206.
(d) The commissioner is authorized to promulgate rules concerning all aspects of the administrative process related to benefit review conferences pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
1992 Pub.Acts, c. 900, § 14;1996 Pub.Acts, c. 944, § 22, eff. Jan. 1, 1997; 1999 Pub.Acts, c. 520, § 41, eff. June 17, 1999; 2004 Pub.Acts, c. 962, § 20;2008 Pub.Acts, c. 1183, §§ 4, 7, eff. June 19, 2008.
(a)(1) A dispute may be resolved either in whole or in part at the benefit review conference. If the conference results in the resolution of some of the disputed issues by mutual agreement or in a settlement, the workers' compensation specialist shall reduce the agreement or the settlement to writing. The workers' compensation specialist and each party shall sign the agreement or settlement. A settlement is not effective unless it is approved in accordance with § 50-6-206, and takes effect on the date approved.
(2) The specialist shall note in a report on unresolved issues required by this section the failure of any party to furnish documents to the specialist on request by the specialist, to cooperate in scheduling, or to provide a representative who possessed settlement authority in attendance at the conference.
(b) If the dispute is not entirely resolved at the benefit review conference, the workers' compensation specialist shall prepare a written report that also includes:
(1) A statement of each agreed upon issue; and
(2) A statement of each issue raised but not agreed upon.
(c) The workers' compensation specialist shall file the signed agreement and the report with the commissioner and the court, as appropriate. Any party filing an action with a court of competent jurisdiction shall notify the division of the filing at the time of the filing. After receiving the notice, the division shall file within seven (7) days with such court any report on unresolved issues pursuant to this section resulting from a benefit review conference.
1992 Pub.Acts, c. 900, § 15;1996 Pub.Acts, c. 944, § 23, eff. Jan. 1, 1997.
(a)(1) For injuries arising on or after August 1, 1992, and prior to July 1, 2004, in cases where an injured employee is eligible to receive any permanent partial disability benefits, pursuant to § 50-6-207(3)(A)(i) and (F), and the pre-injury employer returns the employee to employment at a wage equal to or greater than the wage the employee was receiving at the time of injury, the maximum permanent partial disability award that the employee may receive is two and one-half (2 1/2 ) times the medical impairment rating determined pursuant to the American Medical Association Guides to the Evaluation of Permanent Impairment (American Medical Association), the Manual for Orthopedic Surgeons in Evaluating Permanent Physical Impairment (American Academy of Orthopedic Surgeons), or in cases not covered by either of these, an impairment rating by any appropriate method used and accepted by the medical community. In making determinations, the court shall consider all pertinent factors, including lay and expert testimony, employee's age, education, skills and training, local job opportunities, and capacity to work at types of employment available in claimant's disabled condition.
(2) In accordance with this section, the courts may reconsider, upon the filing of a new cause of action, the issue of industrial disability. Such reconsideration shall examine all pertinent factors, including lay and expert testimony, employee's age, education, skills and training, local job opportunities, and capacity to work at types of employment available in claimant's disabled condition. The reconsideration may be made in appropriate cases where the employee is no longer employed by the pre-injury employer and makes application to the appropriate court within one (1) year of the employee's loss of employment, if the loss of employment is within four hundred (400) weeks of the day the employee returned to work. In enlarging a previous award, the court must give the employer credit for prior benefits paid to the employee in permanent partial disability benefits, and any new award remains subject to the maximum established in subsection (b).
(b) Subject to the factors provided in subsection (a), in cases for injuries on or after August 1, 1992, and prior to July 1, 2004, where an injured employee is eligible to receive permanent partial disability benefits, pursuant to § 50-6-207(3)(A)(i) and (F), and the pre-injury employer does not return the employee to employment at a wage equal to or greater than the wage the employee was receiving at the time of injury, the maximum permanent partial disability award that the employee may receive is six (6) times the medical impairment rating determined pursuant to the American Medical Association Guides to the Evaluation of Permanent Impairment (American Medical Association), the Manual for Orthopedic Surgeons in Evaluating Permanent Physical Impairment (American Academy of Orthopedic Surgeons), or in cases not covered by either of these, an impairment rating by any appropriate method used and accepted by the medical community. In making such determinations, the court shall consider all pertinent factors, including lay and expert testimony, employee's age, education, skills and training, local job opportunities, and capacity to work at types of employment available in claimant's disabled condition.
(c) The multipliers established by subsections (a) and (b) are intended to be maximum limits. If the court awards a multiplier of five (5) or greater, then the court shall make specific findings of fact detailing the reasons for awarding the maximum impairment. In making the determinations, the court shall consider all pertinent factors, including lay and expert testimony, employee's age, education, skills and training, local job opportunities, and capacity to work at types of employment available in claimant's disabled condition.
(d)(1)(A) For injuries occurring on or after July 1, 2004, in cases in which an injured employee is eligible to receive any permanent partial disability benefits either for body as a whole or for schedule member injuries, except schedule member injuries specified in § 50-6-207(3)(A)(ii)(a)-(l), (n), (q), and (r), and the pre-injury employer returns the employee to employment at a wage equal to or greater than the wage the employee was receiving at the time of the injury, the maximum permanent partial disability benefits that the employee may receive is one and one half (1 1/2 ) times the medical impairment rating determined pursuant to § 50-6-204(d)(3). In making the determinations, the court shall consider all pertinent factors, including lay and expert testimony, the employee's age, education, skills and training, local job opportunities and capacity to work at types of employment available in claimant's disabled condition.
(B)(i) If an injured employee receives benefits for body as a whole injuries pursuant to subdivision (d)(1)(A) and the employee is subsequently no longer employed by the pre-injury employer at the wage specified in subdivision (d)(1)(A) within four hundred (400) weeks of the day the employee returned to work for the pre-injury employer, the employee may seek reconsideration of the permanent partial disability benefits. Employees who continue in their employment after a reduction in pay or a reduction in hours due to economic conditions shall not be entitled to reconsideration of their claims under this section if the reduction in pay or reduction in hours affected at least fifty percent (50%) of all hourly employees operating at or out of the same location. This provision does not apply to or include employees involved in layoffs, closures or a termination of business operations.
(ii) If an injured employee receives benefits for schedule member injuries pursuant to subdivision (d)(1)(A), and the employee is subsequently no longer employed by the pre-injury employer at the wage specified in subdivision (d)(1)(A), the employee may seek reconsideration of the permanent partial disability benefits. The right to seek the reconsideration shall extend for the number of weeks for which the employee was eligible to receive benefits under § 50-6-207, beginning with the day the employee returned to work for the pre-injury employer. Employees who continue in their employment after a reduction in pay or a reduction in hours due to economic conditions shall not be entitled to reconsideration of their claims under this section if the reduction in pay or reduction in hours affected at least fifty percent (50%) of all hourly employees operating at or out of the same location. This provision does not apply to or include employees involved in layoffs, closures or a termination of business operations.
(iii) Notwithstanding this subdivision (d)(1)(B), under no circumstances shall an employee be entitled to reconsideration when the loss of employment is due to either:
(a) The employee's voluntary resignation or retirement; provided, however, that the resignation or retirement does not result from the work-related disability that is the subject of such reconsideration; or
(b) The employee's misconduct connected with the employee's employment.
(iv) To seek reconsideration pursuant to subdivision (d)(B)(i) or (d)(B)(ii), the employee shall first request a benefit review conference within one (1) year of the date on which the employee ceased to be employed by the pre-injury employer. If the parties are not able to reach an agreement regarding additional permanent partial disability benefits at the benefit review conference, the employee shall be entitled to file a complaint seeking reconsideration in a court of competent jurisdiction within ninety (90) days of the date of the benefit review conference. Any settlement or award of additional permanent partial disability benefits pursuant to reconsideration shall give the employer credit for prior permanent partial disability benefits paid to the employee. Any new settlement or award regarding additional permanent partial disability benefits remains subject to the maximum established in subdivision (d)(2) and shall be based on the medical impairment rating that was the basis of the previous settlement or award.
(v) Notwithstanding any other law to the contrary, an employee shall not be permitted to waive or forfeit, and the parties shall not be permitted to compromise and settle, the employee's rights to reconsideration pursuant to this section.
(C)(i) Notwithstanding any other law to the contrary, for injuries occurring on or after July 1, 2009, if an injured employee receives permanent partial disability benefits for body as a whole injuries or if the injured employee receives permanent partial disability benefits for schedule member injuries pursuant to subdivision (d)(1)(A) and the pre-injury employer is sold or acquired subsequent to the receipt of the permanent partial disability benefits, then the injured employee shall not be entitled to seek reconsideration:
(a) Provided, that the injured employee continues to be employed by the successor employer at the same or higher pay; or
(b) If the employee declines an offer of employment with the successor employer at the same or higher pay.
(ii) Notwithstanding subdivision (d)(1)(C)(i), an injured employee shall be entitled to seek reconsideration:
(a) From the successor employer within four hundred (400) weeks of the day the employee returned to work for the pre-injury employer, if the injured employee received permanent partial disability benefits for body as a whole injuries from the pre-injury employer pursuant to subdivision (d)(1)(A) and the injured employee is no longer employed by the successor employer at the same or higher pay; or
(b) From the successor employer within the number of weeks for which the employee was eligible to receive benefits from the pre-injury employer under § 50-6-207, to be calculated from the day the employee returned to work for the pre-injury employer, if the injured employee received permanent partial disability benefits for schedule member injuries from the pre-injury employer pursuant to subdivision (d)(1)(A) and the injured employee is no longer employed by the successor employer at the same or higher pay.
(iii) Any additional permanent partial disability benefits to which the injured employee is entitled pursuant to subdivision (d)(1)(C)(ii) shall be paid by the successor employer or the insurance carrier for the successor employer.
(iv) If an injured employee is entitled to seek reconsideration pursuant to this subdivision (d)(1)(C), then the employee shall first request a benefit review conference within one (1) year of the date on which the employee ceased to be employed by the successor employer. If the parties are not able to reach an agreement regarding additional permanent partial disability benefits at the benefit review conference, then the employee shall be entitled to file a complaint against the successor employer seeking reconsideration in a court of competent jurisdiction within ninety (90) days of the date of the benefit review conference. Any settlement or award of additional permanent partial disability benefits pursuant to reconsideration shall give the successor employer credit for the prior permanent partial disability benefits paid by the pre-injury employer to the employee. Any new settlement or award regarding additional permanent partial disability benefits shall be subject to the maximum established in subdivision (d)(2).
(2)(A) For injuries arising on or after July 1, 2004, in cases in which the pre-injury employer did not return the injured employee to employment at a wage equal to or greater than the wage the employee was receiving at the time of the injury, the maximum permanent partial disability benefits that the employee may receive for body as a whole and schedule member injuries subject to subdivision (d)(1)(A) may not exceed six (6) times the medical impairment rating determined pursuant to the provisions of § 50-6-204(d)(3). The maximum permanent partial disability benefits to which the employee is entitled shall be computed utilizing the appropriate maximum number of weeks as set forth in § 50-6-207 for the type of injury sustained by the employee. In making such determinations, the court shall consider all pertinent factors, including lay and expert testimony, the employee's age, education, skills and training, local job opportunities, and capacity to work at types of employment available in claimant's disabled condition.
(B) If the court awards a permanent partial disability percentage that equals or exceeds five (5) times the medical impairment rating, the court shall include specific findings of fact in the order that detail the reasons for awarding the maximum permanent partial disability.
(e)(1) It is the intent of the general assembly to adopt as public policy for this state specific provisions related to workers' compensation to preserve the tradition of legal immigration while seeking to close the door to illegal workers in this state and to encourage the employers of this state to comply with federal immigration laws in the hiring or continued employment of individuals who are not eligible or authorized to work in the United States.
(2) The general assembly takes notice that federal law prohibits a pre-injury employer from permitting an employee to return to work following the work-related injury when the employee is not eligible or authorized to work in the United States pursuant to federal immigration laws; and, therefore, the general assembly adopts the following as the compensation to which such an employee is entitled for permanent partial disability benefits:
(A) For injuries occurring on or after July 1, 2009, in cases in which an injured employee is eligible to receive any permanent partial disability benefits either for body as whole or schedule member injuries, the maximum permanent partial disability benefits that the employee may receive is up to one and one half (1 1/2 ) times the medical impairment rating determined pursuant to § 50-6-204(d)(3); provided, that the employer did not knowingly hire the employee at a time when the employee was not eligible or authorized to work in the United States under federal immigration laws. It shall be presumed the employer did not knowingly hire the employee at a time when the employee was not eligible or authorized to work in the United States under federal immigration laws if the employer can show, by a preponderance of the evidence, that the employer in good faith complied with the employment eligibility and identity verification requirements of federal law when the employee was hired:
(i) By ensuring the employee completed Section 1 of Form I-9 at the time the employee started to work;
(ii) By reviewing the documents provided by the employee to establish the employee's identity and eligibility to work;
(iii) By making a good faith determination that the documents presented by the employee for employment and identity authorization appeared to relate to the employee, appeared to be genuine and that the documents provided were in the list of acceptable documents on Form I-9; and
(iv) By reverifying the employment eligibility of the employee upon the expiration of the employee's work authorization and by completing Section 3 of Form I-9, if applicable;
(B) The presumption established in subdivision (e)(2)(A) may be rebutted if the employee can show, by a preponderance of the evidence, that the employer had actual knowledge of the ineligible or unauthorized status of the employee at the time of hire or at the time of the injury, or both. If the presumption is rebutted, a sum of up to five (5) times the medical impairment rating determined by the authorized treating physician pursuant to § 50-6-204(d)(3) shall be paid in the following manner:
(i) A sum up to one and one half (1 1/2 ) times the medical impairment rating shall be paid in a lump sum to the employee, the sum to be paid by the employer's insurer; and
(ii) An additional sum up to three and one half (3 1/2 ) times the medical impairment rating shall be paid by the employer, in a lump sum into, and shall become a part of, the uninsured employers fund created by § 50-6-801; provided, that the sum shall not be paid by the employer's insurer.
1992 Pub.Acts, c. 900, § 16;2004 Pub.Acts, c. 962, §§ 9 to 11; 2009 Pub.Acts, c. 364, § 1, eff. July 1, 2009; 2009 Pub.Acts, c. 526, § 1, eff. June 25, 2009; 2010 Pub.Acts, c. 1034, §§ 1, 2, eff. July 1, 2010.
(a) For injuries that occur on or after August 1, 1992, and prior to July 1, 2004, notwithstanding any provision of this chapter to the contrary, the trial judge may award employees permanent partial disability benefits, not to exceed four hundred (400) weeks, in appropriate cases where permanent medical impairment is found and the employee is eligible to receive the maximum disability award under § 50-6-241(a)(2) or (b). In those cases the court, on the date of maximum medical improvement, must make a specific documented finding, supported by clear and convincing evidence, of at least three (3) of the following four (4) items:
(1) The employee lacks a high school diploma or general equivalency diploma or the employee cannot read or write on a grade eight (8) level;
(2) The employee is fifty-five (55) years of age or older;
(3) The employee has no reasonably transferable job skills from prior vocational background and training; and
(4) The employee has no reasonable employment opportunities available locally considering the employee's permanent medical condition.
(b) For those injuries that occur on or after July 1, 2004, and notwithstanding any provision of this chapter to the contrary and in appropriate cases where the employee is eligible to receive the maximum permanent partial disability award under § 50-6-241(d)(1)(B) or (d)(2), the employee may receive disability benefits not to exceed the appropriate maximum number of weeks as set forth in § 50-6-207 for the type of injury sustained by the employee. In those cases, the court or the workers' compensation specialist shall make specific documented findings, supported by clear and convincing evidence, that as of the date of the award or settlement, at least three (3) of the following facts concerning the employee are true:
(1) The employee lacks a high school diploma or general equivalency diploma or the employee cannot read or write on a grade eight (8) level;
(2) The employee is fifty-five (55) years of age or older;
(3) The employee has no reasonably transferable job skills from prior vocational background and training; and
(4) The employee has no reasonable employment opportunities available locally considering the employee's permanent medical condition.
(c) Subsections (a) and (b) shall not apply to injuries sustained on or after July 1, 2009, by an employee who is not eligible or authorized to work in the United States under federal immigration laws.
1992 Pub.Acts, c. 900, § 18;2004 Pub.Acts, c. 962, § 12;2009 Pub.Acts, c. 526, § 2, eff. June 25, 2009.
(a) An employee may sign an agreement before or after an injury resulting in temporary total disability due to an accident arising out of and in the course of employment in which the employee may receive from the employer, for up to six (6) months after the date of injury, an amount greater than the schedule of compensation for the injury in § 50-6-207. Any agreed payment that is greater than the amount provided by § 50-6-207 shall be credited as an offset to any subsequent award or settlement for permanent partial disability, permanent total disability, or death benefits.
(b) If the employee's temporary total disability exceeds six (6) months from the date of injury, any payments greater than those provided by § 50-6-207, made after that date, shall not be credited as an offset to any subsequent award or settlement for permanent partial disability, permanent total disability, or death benefits.
(c) This section applies to employees of municipalities, counties, and other governmental entities.
(a) The department shall develop a statistical data form for collecting data relevant to assessing the workers' compensation system. In developing or altering the form, the department shall seek written comment from the advisory council on workers' compensation and the administrative office of the courts. The commissioner shall submit the proposed form to the commerce and labor committee of the senate, and the consumer and human resources committee of the house of representatives, together with any written comments of the advisory council on workers' compensation and the administrative office of the courts, prior to submission of a proposed rule to the attorney general and reporter. The commissioner shall promulgate the form by rule, pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
(b)(1) A statistical data form shall be filed for every workers' compensation matter that is concluded by settlement, whether approved by a court or the department. A statistical data form shall be filed for every workers' compensation matter that is concluded by a trial so that the form reflects the trial court's ruling and information that is current as of the date the trial order is submitted to the court for approval, whether or not an appeal of the matter is anticipated or filed. A statistical data form shall be either typed or completed by computer using a form available on the web site of the division of workers' compensation.
(2) A statistical data form is not required to be filed in cases that involve reconsideration of a prior settlement or trial judgment order for which a statistical data form was filed at the time of submission of the prior order. A statistical data form is not required to be filed if the only issue resolved by an order is the closing of future medical benefits that remained open pursuant to a prior order for which a statistical data form was filed at the time of submission of the prior order.
(3) In cases involving a workers' compensation settlement that is approved by a court, the completed statistical data form shall be filed at the same time as the order approving the settlement is filed and shall be filed with the clerk of the court in which the settlement order is filed. A clerk of the court shall not accept a settlement order for filing, unless it is accompanied by a fully completed statistical data form.
(4) In cases involving a workers' compensation case that is resolved by trial, the completed statistical data form shall be filed at the same time as the final order is submitted to the trial court for approval and shall be filed with the clerk of the court in which the matter was tried. A clerk of the court shall not accept a trial order for filing, unless it is accompanied by a fully completed statistical data form.
(5) A settlement order of a court in a workers' compensation matter is not final until the statistical data form required by this section is fully completed and filed with the appropriate clerk of the court.
(6) A workers' compensation trial order is not final until the statistical data form required by this section is fully completed and filed with the appropriate clerk of the court. In the event of an appeal of a workers' compensation trial verdict to the supreme court of Tennessee, this section shall neither abrogate nor supersede the Rules of Appellate Procedure regarding the computation of the time for the proper filing of a notice of appeal. The information submitted in the statistical data form shall not be admissible on appeal for any purpose.
(c) The clerk of the court shall forward to the administrator of the division of workers' compensation, on or before the tenth day of each calendar month, all workers' compensation statistical data forms filed with the clerk during the preceding calendar month.
(d) In cases involving a workers' compensation settlement that is submitted to the department for approval, the statistical data form required by this section shall also be completed and submitted to the department at the time of the submission of the settlement for approval. A settlement approved by the department shall not become final until the statistical data form required by this section is fully completed and received by the department.
(e) It is the responsibility of the employer or the employer's agent to complete and file the form required by this section, contemporaneously with the filing of the final order or settlement. The employee and any agent of the employee are required to cooperate with the employer in completing this form.
(f)(1) If the commissioner or the commissioner's designee determines that an insurer or self-insured employer fails to complete substantially and file the statistical data forms with such frequency as to indicate a general business practice, the commissioner may assess a monetary penalty against the insurance company for the employer or against the employer, if self insured. The amount of the monetary penalty shall not exceed one hundred dollars ($100). For the purposes of this subsection (f), “general business practice” means an insurer or self-insured employer fails to complete substantially and file a statistical data form more than five (5) times.
(2) No monetary penalty may be assessed by the commissioner, or the commissioner's designee, with respect to a form that has been filed with the division of workers' compensation for more than ninety (90) days. No monetary penalty may be assessed for a statistical data form that was not filed with the court clerk more than ninety (90) days from the date of entry of the final order of the court. No monetary penalty may be assessed due to the failure to provide information on the statistical data form that is solely within the knowledge of the employee or due solely to the failure of the employee to sign the form.
(3) An insurance company or self insured employer assessed a monetary penalty by the commissioner pursuant to this subsection (f), may appeal the penalty under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. The commissioner, or an agency member appointed by the commissioner, shall have the authority to hear as a contested case an administrative appeal of any monetary penalty assessed pursuant to this subsection (f).
1998 Pub.Acts, c. 1024, § 3, eff. July 1, 1998; 1999 Pub.Acts, c. 520, § 41, eff. June 17, 1999; 2003 Pub.Acts, c. 359, § 3, eff. June 17, 2003; 2003 Pub.Acts, c. 359, § 4, eff. June 17, 2003, and Jan. 1, 2004; 2005 Pub.Acts, c. 429, § 13, eff. Jan. 1, 2006; 2011 Pub.Acts, c. 410, § 10(c), eff. July 1, 2011; 2013 Pub.Acts, c. 236, § 31, eff. April 19, 2013.
(a) If following a civil action in a workers' compensation case filed pursuant to § 50-6-225, the court enters a judgment or decree that includes multiple findings with separate awards of payment to the employee, the following shall apply:
(1) If the employer, insurer or employee appeals one (1) or more of the findings but not all, any payments owed to the employee as the result of a finding not appealed shall be due and payable to the employee when the time for appealing the judgment or decree has expired.
(2) If the employer, insurer or employee appeals more than one (1) of the findings and the supreme court grants permission to appeal as to at least one (1) of the findings appealed but not all, any payments owed to the employee as the result of a finding not appealed or for which permission to appeal was not granted shall be due and payable to the employee when the time for appealing the judgment or decree has expired.
(b)(1) When the time for filing an appeal has expired under subdivision (a)(1), the court, unless in its discretion it determines otherwise, shall enter final judgment pursuant to Rule 54.02 of the Rules of Civil Procedure as to all findings not appealed.
(2) When the time for filing an appeal has expired under subdivision (a)(2), the supreme court, unless in its discretion it determines otherwise, shall issue a mandate pursuant to Rule 42 of the Rules of Appellate Procedure as to all findings for which permission to appeal was not granted.
To assure employees, employers and the department have the information necessary to resolve a workers' compensation claim and to effectuate the legislative intent of § 50-6-241, the commissioner of labor and workforce development shall establish rules, in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to govern the provision of a medical impairment rating required by § 50-6-204(d)(3)(A). The commissioner shall promulgate these rules in conjunction with the advisory council on workers' compensation. The rules required by this section shall take effect on October 1, 2008. The commissioner is authorized to use emergency rules under former § 4-5-209(a)(4) or emergency rules under § 4-5-208, as appropriate, in order to have such rules in effect no later than October 1, 2008.
2002 Pub.Acts, c. 523, § 3, eff. July 1, 2002; 2008 Pub.Acts, c. 1183, § 8, eff. June 19, 2008.
(a) As used in this chapter, “occupational diseases” means all diseases arising out of and in the course of employment. A disease shall be deemed to arise out of the employment only if:
(1) It can be determined to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment;
(2) It can be fairly traced to the employment as a proximate cause;
(3) It has not originated from a hazard to which workers would have been equally exposed outside of the employment;
(4) It is incidental to the character of the employment and not independent of the relation of employer and employee;
(5) It originated from a risk connected with the employment and flowed from that source as a natural consequence, though it need not have been foreseen or expected prior to its contraction; and
(6) There is a direct causal connection between the conditions under which the work is performed and the occupational disease. Diseases of the heart, lung, and hypertension arising out of and in the course of any type of employment shall be deemed to be occupational diseases.
(b) Cumulative trauma conditions, hearing loss, carpal tunnel syndrome, and all other repetitive motion conditions shall not be considered an occupational disease unless such conditions arose primarily out of and in the course and scope of employment. The opinion of the physician, selected by the employee from the employer's designated panel of physicians pursuant to §§ 50-6-204(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.
1947 Pub.Acts, c. 139, § 1; 1959 Pub.Acts, c. 172, § 12; 1969 Pub.Acts, c. 60, § 1; 1971 Pub.Acts, c. 134, § 5; 1973 Pub.Acts, c. 122, § 1; 1977 Pub.Acts, c. 339, §§ 2, 5; impl. am. by 1980 Pub.Acts, c. 534, § 1; 2011 Pub.Acts, c. 416, § 9, eff. June 6, 2011.
Formerly 1950 Code Supp., § 6852; § 50-1101.
(a) An occupational disease that an employee had on March 12, 1947, shall not be covered under this chapter. An employee has an occupational disease within the meaning of this chapter if the disease or condition has developed to such an extent that it can be diagnosed as an occupational disease. In every suit for compensation benefits, the burden shall be on the employee to prove that the employee did not have, as of that date, the occupational disease for which the employee is seeking compensation.
(b) In considering whether an employee has the occupational disease of coal worker's pneumoconiosis and is totally disabled or dies from coal worker's pneumoconiosis, all the presumptions, criteria and standards contained in or promulgated by reason of the federal Coal Mine Health and Safety Act of 1969, Pub. L. No. 91-173, compiled in 30 U.S.C. § 901 et seq., specified as the basis for determining eligibility of applicants for benefits because of the disease or its effects shall be used and be applicable under this chapter, and where in a proceeding under this chapter for benefits it is determined the employee or the employee's dependents would be entitled to benefits under the federal Coal Mine Health and Safety Act of 1969, and the Black Lung Benefits Act of 1972, Pub. L. No. 92-303, compiled in 30 U.S.C. § 901 et seq., the employee or the employee's dependents by reason of the determination shall be considered totally disabled from coal worker's pneumoconiosis and its effects, under this chapter the same as if the employee, or the employee's dependents, establishes the right to recover benefits based upon a total disability from coal worker's pneumoconiosis, or death by reason of coal worker's pneumoconiosis under the laws of this state.
1947 Pub.Acts, c. 139, § 1; 1971 Pub.Acts, c. 300, § 4; 1980 Pub.Acts, c. 739, § 1.
Formerly 1950 Code Supp., § 6852; § 50-1102.
(a)(1) When the employer and employee are subject to this chapter, the partial or total incapacity for work or the death of an employee resulting from an occupational disease as defined in § 50-6-301, shall be treated as the happening of an injury by accident or death by accident, and the employee, or in case of the employee's death, the employee's dependents, shall be entitled to compensation as provided in this chapter.
(2) An employee who has an occupational disease shall be entitled to the same hospital, medical and miscellaneous benefits as an employee who has a compensable injury by accident, and, in the event of death, the same funeral benefit shall be paid as in the case of death from a compensable accident.
(b)(1) An employee totally disabled due to coal workers' pneumoconiosis shall be paid benefits during disability as provided for by the federal Coal Mine Health and Safety Act of 1969, compiled in 30 U.S.C. § 901 et seq.
(2) In accordance with the federal Coal Mine Health and Safety Act of 1969, if the employee has one (1) or more dependents, the payments shall be increased fifty percent (50%) of such payments for the first dependent, seventy-five percent (75%) for two (2) dependents, and one hundred percent (100%) for three (3) or more dependents.
(3) In case of death of an employee receiving benefits under this chapter, benefits shall be paid to that employee's surviving spouse and any dependents in the same manner provided in the federal Coal Mine Health and Safety Act of 1969, as applicable to employees suffering from coal workers' pneumoconiosis.
(4) Benefits paid under this subsection (b) shall not be subject to the maximum compensation limitations set forth in §§ 50-6-205, 50-6-207(1), (3) and (4), 50-6-209, 50-6-210(e)(10) or any other sections of this chapter, but the maximum compensation limitations shall be controlled exclusively by the maximum compensation benefits and limitations established under the federal Coal Mine Health and Safety Act of 1969, as applicable to employees suffering from coal workers' pneumoconiosis.
(5) The minimum compensation limitations for employees suffering from coal workers' pneumoconiosis shall be no less than those set forth in the federal Coal Mine Health and Safety Act of 1969.
1947 Pub.Acts, c. 139, § 1; 1971 Pub.Acts, c. 300, § 5; 1972 Pub.Acts, c. 699, § 6; 1975 Pub.Acts, c. 210, § 1; 1977 Pub.Acts, c. 339, § 3; impl. am. by 1980 Pub.Acts, c. 534, § 1; 1985 Pub.Acts, c. 325, § 1.
Formerly 1950 Code Supp., § 6852; § 50-1105.
When an employee has an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of the disease, and the employer's insurance carrier, if any, at the time of the exposure, shall alone be liable, for the occupational disease, without right to contribution from any prior employer or insurance carrier.
1947 Pub.Acts, c. 139, § 1; 1977 Pub.Acts, c. 339, § 4.
Formerly 1950 Code Supp., § 6852; § 50-1106.
(a) Within thirty (30) days after the first distinct manifestation of an occupational disease, the employee, or someone in the employee's behalf, shall give written notice thereof to the employer in the same manner as is provided in the case of a compensable accidental injury.
(b) This section shall not apply to claims for total disability or death due to or resulting from an asbestos-related disease or coal worker's pneumoconiosis.
1947 Pub.Acts, c. 139, § 1; 1971 Pub.Acts, c. 300, § 6; 1997 Pub.Acts, c. 177, § 1, eff. May 7, 1997.
Formerly 1950 Code Supp., § 6852; § 50-1107.
(a) The right to compensation for an occupational disease or a claim for death benefits as a result of an occupational disease shall be forever barred, unless a claim is initiated pursuant to § 50-6-203; provided, however, that the applicable time limitation period or periods shall commence as of the date of the beginning of the incapacity for work resulting from an occupational disease or upon the date death results from the occupational disease; provided, further, that if upon the date of the death of the employee the employee's claim has become barred, the claim of the employee's dependent or dependents shall likewise be barred, and in that case the claim shall be barred whether or not the employer gives the notice required by § 50-6-224(2).
(b) A claim for benefits or death due to coal worker's pneumoconiosis shall be timely filed if the claim is instituted pursuant to § 50-6-203 within three (3) years of the discovery of total disability or the date of death, as the case may be.
1947 Pub.Acts, c. 139, § 1; 1971 Pub.Acts, c. 300, § 7; 2004 Pub.Acts, c. 962, § 21.
Formerly 1950 Code Supp., § 6852; § 50-1108.
(a)(1) When an employee, or prospective employee, though not incapacitated for work, is found to be affected by or susceptible to a specific occupational disease, the employee or prospective employee may, subject to the approval of the workers' compensation division of the department of labor and workforce development, be permitted to waive in writing compensation for any aggravation of the employee's or prospective employee's condition that may result from the employee's or prospective employee's working or continuing to work in the same or similar occupation for the same employer or for another employer; provided, that this provision shall not apply to specific occupational diseases on which waivers are prohibited by the federal Coal Mine Health and Safety Act of 1969, compiled in 30 U.S.C. 901 et seq.
(2) All provisions of this chapter, with respect to accidents shall be applicable to the coverage provided in this part for occupational diseases, except as otherwise provided in this part.
(b) When an employee or prospective employee has a prior history of heart disease, heart attack or coronary failure or occlusion, the employee or prospective employee may be permitted to waive in writing compensation from the employee's or prospective employee's employer or future employer for claims growing out of an aggravation or repetition of the condition, the waiver to be evidenced by filing with the administrator a written instrument to which shall be attached a copy of a medical statement giving the prior history of the condition, and in all those cases claims for workers' compensation benefits growing out of an aggravation or repetition of the condition by the employee or the employee's dependents shall be barred.
(c) No employer shall require the execution of a waiver by any employee who was at work on March 17, 1961, unless the employee subsequently suffers a heart condition.
1947 Pub.Acts, c. 139, § 1; 1961 Pub.Acts, c. 339, § 1; 1972 Pub.Acts, c. 699, § 7; impl. am. by 1980 Pub.Acts, c. 534, § 1; 1999 Pub.Acts, c. 520, § 41, eff. June 17, 1999.
Formerly 1950 Code Supp., § 6852; § 50-1109.
(a)(1)(A) Every person, partnership, association, organization or corporation, whether organized under the laws of this or any other state or country, that has or may hereafter comply with the laws of this state and is authorized to write accident or indemnity insurance in this state shall be authorized and empowered to write workers' compensation insurance under the terms and provisions of this part, and likewise every reciprocal and mutual insurance association or corporation shall have the same privileges; provided, that any such entity offering workers' compensation insurance shall be required to offer medical benefits coverage for paid-on-call and volunteer firefighters.
(B) For purposes of this subdivision (a)(1), “volunteer firefighter” means any member or personnel of a fire department, volunteer fire department, rescue squad or volunteer rescue squad, including, but not limited to, a junior member, a board member or an auxiliary member of the department or squad.
(2) An entity offering workers' compensation insurance shall offer coverage for members of rescue squads on similar terms and conditions as coverage available to full-time paid firefighters or emergency medical services personnel.
(b)(1) All insurance carriers provided for by this section shall be subject to a tax of four percent (4%) on premiums collected for workers' compensation insurance, and a surcharge of four tenths of one percent (0.4%) of the premiums, the surcharge to be earmarked for the administration of the Tennessee Occupational Safety and Health Act, compiled in chapter 3 of this title, and this shall be in lieu of any other tax on premiums for the writing of the business of workers' compensation insurance now provided for by law.
(2) The surcharge of four tenths of one percent (0.4%) on the tax on workers' compensation insurance premiums levied by this section shall not apply to any employer who employs ten (10) or fewer employees unless the employer is in the business of construction or manufacturing.
(c) Of the funds collected pursuant to subsection (b), a sum sufficient shall be allocated from and equal to an amount not greater than fifty percent (50%) of the revenues derived from the premium tax levied pursuant to this section, and shall be paid into the second injury fund created in § 50-6-208, to provide payments for the benefits provided in § 50-6-208.
1919 Pub.Acts, c. 123, § 40; 1923 Pub.Acts, c. 84, § 4; impl. am. by 1980 Pub.Acts, c. 534, § 1; 1981 Pub.Acts, c. 396, §§ 3, 4; 1985 Pub.Acts, c. 393, § 17; 1988 Pub.Acts, c. 707, §§ 1, 2; 1995 Pub.Acts, c. 449, § 1, eff. June 12, 1995; 1997 Pub.Acts, c. 533, § 51, eff. June 19, 1997; 2013 Pub.Acts, c. 210, § 1, eff. April 23, 2013.
(a) In determining classifications of risks and premiums relating to the classification, the insurer may include allowances of any character made to any employee, only when the allowances are in lieu of wages, and are specified as part of the wage contract.
(b) Before approving any workers' compensation loss cost filing made by the designated rate service organization pursuant to this part or title 56, the commissioner of commerce and insurance shall consult with the advisory council on workers' compensation concerning the filing. The council shall have sixty (60) days to provide written comment on the filing. The council shall meet to provide the comment. The commissioner of commerce and insurance shall approve, disapprove or modify the filing within ninety (90) days of receiving the filing. If the commissioner of commerce and insurance modifies the filing, the modification shall be within the range established by the recommendation of the rate service organization in its filing and the recommendation of the advisory council on workers' compensation. In instances when the commissioner of commerce and insurance modifies the filing, the rate service organization shall develop a plan that reflects the commissioner's modification, unless the organization appeals the modification pursuant to § 56-5-308. The commissioner shall report the action taken on the filing to the commerce and labor committee of the senate, and the consumer and human resources committee of the house of representatives and to the speakers of the senate and the house of representatives.
(c) Prior to the commissioner of commerce and insurance establishing the multiplier to be applied to the assigned risk plan, as provided in § 56-5-314(c), the commissioner shall provide notice of the intended action, including supporting rationale for the action, to the advisory council on workers' compensation. The council may, within fifteen (15) days of receipt of the notice, provide written comment and recommendation to the commissioner related to the intended action. After the fifteen-day period has expired, the commissioner shall establish the multiplier, by order, as provided in § 56-5-314(c).
(d) The commissioner of commerce and insurance shall report quarterly to the advisory council on workers' compensation concerning all workers' compensation filings made by the designated rate service organization received by the department of commerce and insurance that were not referred to the council as set out in subsection (b) since the last report.
1919 Pub.Acts, c. 123, § 40; 1923 Pub.Acts, c. 84, § 4; impl. am. by 1971 Pub.Acts, c. 137, § 2; 1972 Pub.Acts, c. 456, § 1; impl. am. by 1980 Pub.Acts, c. 534, § 1; 1996 Pub.Acts, c. 944, §§ 32, 33, eff. Jan. 1, 1997; 1998 Pub.Acts, c. 1024, § 15, eff. July 1, 1998; 2001 Pub.Acts, c. 192, § 2, eff. July 1, 2001; 2003 Pub.Acts, c. 359, §§ 5, 6, eff. June 17, 2003; 2011 Pub.Acts, c. 410, § 10(d), eff. July 1, 2011; 2013 Pub.Acts, c. 236, § 31, eff. April 19, 2013.
(a)(1) Every insurance company doing a workers' compensation business in this state shall furnish a bond running to the state in the sum of fifty thousand dollars ($50,000) with some surety company authorized to transact business in this state as surety, in the form approved by the commissioner of commerce and insurance, conditioned for the payment of compensation losses on policies issued by the company upon risks located in the state.
(2) Suit may be brought upon the bond by the division of workers' compensation for the use and benefit of any party or parties at interest.
(3) The annual license of the company shall not be issued or renewed until it has filed with the commissioner of commerce and insurance a bond as required in subdivision (a)(1).
(4) In lieu of the bond, a deposit of the same amount may be made with the state treasurer in the form of other security satisfactory to the commissioner of commerce and insurance.
(b) The commissioner may, in the commissioner's discretion, accept, in lieu of the bond required in subdivision (a)(1), a certificate from the commissioner of insurance or other corresponding official of the state in which the insurance company is organized and domiciled, that the company has on deposit in such state the sum of not less than one hundred thousand dollars ($100,000) in cash, or its equivalent, which deposit is for the protection of all of its policyholders, ratably.
1933 Pub.Acts, c. 158, § 1; impl. am. by 1971 Pub.Acts, c. 137, § 2; impl. am. by 1980 Pub.Acts, c. 534, § 1.
Formerly 1950 Code Supp., § 6894; § 50-1204.
(a) Every employer under and affected by this chapter, shall:
(1) Insure and keep insured the employer's liability under this chapter in some person or persons, association, organization or corporation authorized to transact the business of workers' compensation insurance in this state; or
(2) Possess a valid certificate of authority from the commissioner of commerce and insurance by furnishing satisfactory proof of the employer's financial ability to pay all claims that may arise against the employer under this chapter and guarantee the payment of the claims in the amount and manner and when due as provided for in this chapter.
(b)(1) If the employer elects to proceed under subdivision (a)(2), the commissioner of commerce and insurance shall require the applicant to pay a nonrefundable application fee of five hundred dollars ($500) or in an amount the commissioner shall promulgate by rule.
(2) The commissioner of commerce and insurance shall require the applicant to file and maintain with the department of commerce and insurance the following:
(A)(i) Security, in an amount to be determined by the commissioner of commerce and insurance, but not less than five hundred thousand dollars ($500,000), in any of the following forms, as specified herein: negotiable securities; a surety bond; a certificate of deposit; or a letter of credit;
(ii) The security, or a contract between the self-insured employer, a depository institution and the commissioner of commerce and insurance evidencing the security held in the depository institution for purposes of compliance with this section, shall be held by the commissioner of commerce and insurance and shall be conditioned to run solely and directly for the benefit of the employees of the self-insured employer. Any legal actions to enforce the payment of the security being held for purposes of compliance with this section shall be brought by the commissioner of commerce and insurance for the benefit of the employees of the self-insured employer;
(iii) The security held pursuant to this section may be used for the payment of any and all fees or costs required to administer the disbursement of the proceeds to or for the benefit of the employees;
(iv) The venue for any suit filed by the commissioner of commerce and insurance under this provision shall be in Davidson County;
(v)(a) Any security held for purposes of compliance with this section shall be held for a minimum of ten (10) years after the self-insured employer is no longer self-insured and the self-insured employer shall maintain the fair market value of security on deposit at not less than five hundred thousand dollars ($500,000), unless otherwise approved by the commissioner of commerce and insurance or the commissioner's designee;
(b) Any employer that is no longer self-insured pursuant to this section as of December 31, 2004, shall not be subject to subdivision (b)(2)(A)(v)(a);
(vi) All security, and contracts evidencing the security, filed with the commissioner of commerce and insurance shall be in a form substantively that has been previously approved by the commissioner of commerce and insurance. Any security that fails to meet any requirement under this section shall not be considered for purposes of determining a self-insurer's compliance with any of the security maintenance requirements of this section;
(vii) As used in this subdivision (b)(2)(A), “qualified United States financial institution” shall have the meaning assigned by § 56-2-209(a).
(viii) The commissioner of commerce and insurance may by rule establish requirements for securities posted pursuant to this subsection (b). These rules may also prescribe the various types and classes of securities that the commissioner of commerce and insurance will accept under this subsection (b).
(B)(i) Evidence of the employer's financial ability to pay all claims that may arise against the employer in the form of an annual certified financial statement, including a statement of assets and liabilities and a statement of profit and loss, to be filed no later than the last day of the sixth month after the end of the employer's immediately preceding fiscal year;
(ii) The financial statement is to include a detailed accounting for reserves for losses outstanding incurred in connection with workers' compensation self-insurance. The employer's losses and adequacy of reserves shall be certified annually by an actuary qualified under rules established by the commissioner of commerce and insurance for the filing of statements by insurance companies.
(3) Filings pursuant to this subsection (b) shall be kept confidential by the commissioner of commerce and insurance and shall not be construed to be a public record pursuant to title 10, chapter 7.
(4) The commissioner of commerce and insurance may assess a civil penalty of one hundred dollars ($100) per day for each day any self-insured employer has failed to comply with any financial record filing requirement. The civil penalty assessed under this subdivision (b)(4) shall be cumulative and in addition to any other civil penalty or remedy available to the commissioner. No civil penalty shall be assessed against any political subdivision of the state.
(5) The commissioner of commerce and insurance shall take into account all available information when making the determination as to both the adequacy of all security deposits, letters of credit, negotiable securities or bonds held by the commissioner and whether an employer has the ability to pay all claims that may arise.
(6) No employer shall self-insure its workers' compensation liabilities without a certificate of authority issued by the commissioner of commerce and insurance. It shall be unlawful for any employer to self-insure its liabilities for workers' compensation without first obtaining a duly issued certificate of authority from the commissioner of commerce and insurance. Whenever an employer has complied with subdivisions (a)(2) and (b)(2)(A) and (B), the commissioner of commerce and insurance, or the commissioner's designee, may issue to the employer a certificate of authority allowing the employer to self-insure under this section. Notice of this authorization shall be sent to the commissioner of labor and workforce development.
(7) Upon failure by an authorized self-insured employer to furnish the commissioner of commerce and insurance the requirements delineated in subdivisions (a)(2) and (b)(2)(A) and (B), the commissioner may, after giving written notice and an opportunity for a hearing to the affected party or parties within thirty (30) days, suspend or revoke the certificate authorizing the employer to self-insure granted under this section. The commissioner may, without prior notice and if it appears in the commissioner's discretion that the continuation of the certificate would be clearly hazardous to the employees of the self-insurer or to the public generally, summarily suspend an authorized self-insurer's certificate before a hearing is commenced and in that event shall immediately notify the self-insurer, and the notice shall include a statement to the effect that the commissioner's action is subject to review. All hearings conducted under this section shall comply with the contested case provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
(8) Any hearing under this section shall be requested in writing by the self-insured employer within fifteen (15) days of receiving written notification from the commissioner of commerce and insurance or the commissioner's designee. In any proceeding in which the self-insured employer's certificate of authority is suspended or revoked, the self-insured employer shall pay all costs associated with the proceeding. The commissioner may serve a notice, order, petition or complaint in any action arising under this section by certified mail to the self-insured employer at the address of record in the files of the department. Notwithstanding any law to the contrary, service in the manner set forth in this subdivision (b)(8), shall be deemed to constitute actual service on the self-insured employer.
(9) The commissioner of commerce and insurance or the commissioner's designee shall immediately notify the commissioner of labor and workforce development of any decision to suspend or revoke a certificate authorizing an employer to self-insure.
(10) The commissioner of commerce and insurance or the commissioner's designee has the authority to examine and investigate any self-insured employer whenever the commissioner deems it prudent to do so. The purposes and scope of the examinations and the commissioner's powers shall be set forth in title 56, chapter 1, part 4, pertaining to examinations of insurance companies.
(11) The commissioner of commerce and insurance may promulgate rules and regulations, including emergency rules and regulations, necessary for the administration of this section and shall conduct all rulemaking in accordance with the Uniform Administrative Procedures Act.
(c)(1) With the permission of a trade or professional association board of directors, ten (10) or more employers of the same group may enter into agreements to pool their liabilities under this chapter for the purpose of qualifying as self-insurers. The trade or professional association shall have been in active existence in Tennessee for at least five (5) years and the association shall:
(A) Have a constitution or bylaws;
(B) Have members that support the association by regular payment of dues on an annual, semiannual, quarterly or monthly basis; and
(C) Be created in good faith for purposes other than that of creating workers' compensation self-insurer pools. The commissioner of commerce and insurance has the authority to promulgate rules and regulations deemed necessary to provide for the solvency, administration and enforcement of the pooling agreements. To the extent deemed necessary by the commissioner of commerce and insurance, each employer member of the approved group shall be classified as a self-insurer as otherwise provided in this chapter.
(2) Notwithstanding any other law or rule to the contrary, funds not needed for current obligations may be invested by the board of trustees in Tennessee securities as defined in § 56-4-210(a). The board of trustees of each workers' compensation pool shall adopt an investment policy. The policy shall address credit, quality of investments, maximum maturity of investments and other matters the board deems appropriate. Real estate investments must be undertaken with the approval of the commissioner of commerce and insurance.
(3)(A) Each group of employers qualifying as self-insurers pursuant to this subsection (c) shall submit to the commissioner of commerce and insurance a statement of financial condition audited by an independent certified public accountant on or before the last day of the sixth month following the end of the group's fiscal year. A thirty-day extension of the financial statement filing requirement shall be granted by the commissioner upon receipt of a request, via certified mail, by a group. The request shall be submitted to the commissioner not less than thirty (30) days prior to the date the financial statement is due to be filed.
(B) Notwithstanding subdivision (c)(3)(A), a qualified self-insured trust that has entered into a self-insurance loss portfolio transfer agreement approved by the commissioner of commerce and insurance with an insurer licensed in this state pursuant to which all of the liabilities and obligations pooled by the group of employers of the self-insured trust for their workers' compensation and employers' liability losses, including all existing and incurred but not reported claims, is not required to annually submit a statement of financial condition audited by an independent certified public accountant; provided, that the commissioner of commerce and insurance has granted a request filed by the self-insured trust for exemption from the annual submission of an audited statement of financial condition.
(4)(A) At the request of a group of employers qualifying as self-insurers pursuant to this subsection (c), the commissioner of commerce and insurance, in the commissioner's sole discretion, may grant additional thirty-day extensions to the financial statement filing requirements for acts of God, public enemies, fire, flood, storms or similar events constituting force majeure that cause the group to require more time to meet the filing requirements;
(B) The commissioner of commerce and insurance, after notice and an opportunity for a hearing, may revoke the certificate of approval of a group of employers qualifying as self-insurers pursuant to this subsection (c) if the group fails to comply with this subsection (c) or any rules promulgated under this subsection (c). In addition to or in lieu of revoking a certificate of approval, the commissioner may assess a civil penalty of one hundred dollars ($100) per day for failure to timely meet the filing requirements set forth in this subsection (c). All hearings under this subsection (c) shall be conducted pursuant to the Uniform Administrative Procedures Act.
(C) Financial statements filed pursuant to this subsection (c), individual member financial statements, work papers, notes, internal documents generated by the department of commerce and insurance or any other information obtained by or disclosed to the commissioner of commerce and insurance pursuant to this chapter or any regulations promulgated under this chapter, shall be confidential and shall not be disclosed to the public. This provision, however, shall not apply to the examination report prepared by the commissioner of commerce and insurance, nor to any rebuttal to the examination reports submitted by or on behalf of the group examined. However, nothing contained in this subdivision (c)(4)(C) shall be construed as prohibiting the commissioner of commerce and insurance from disclosing the information listed in this subdivision (c)(4)(C), or any matters relating to that information, to state agencies of this or any other state, or to law enforcement officials of this or any other state or agency of the federal government at any time;
(D) Upon receipt of a request from any approved authorized agent of a group of employers qualifying as self-insurers pursuant to this subsection (c), the group shall provide a copy of the annual statement of financial condition. The agent, however, shall not further disseminate the information except for purposes of obtaining errors and omission insurance or in the exercise of due diligence of the agent on behalf of the agent's client seeking admission to the group. Further, any individual or entity obtaining a copy of the statement shall hold the information confidential and shall not share or disclose the information to any other individual or entity.
(5) All groups pooling their liabilities pursuant to this subsection (c) shall pay premium tax and surcharges at the rates set forth in § 56-4-206. Each group's premium tax and surcharge payments shall be due on or before the last day of the sixth month following the end of the group's fiscal year. Any group failing to timely pay the taxes and surcharges shall be subject to the penalties and sanctions set forth in § 56-4-216.
(6) The sponsoring trade association may determine whether or not the pool shall remain in existence, subject to the approval of the commissioner.
(7) The pool shall provide to the sponsoring trade association all information requested by the association, other than a member's financial information.
(8) The sponsoring association shall not be liable or responsible for any act or omission of the pool.
(9) The commissioner of commerce and insurance has the authority to promulgate rules and regulations that would provide for civil penalties for violations of this subsection (c) or rules promulgated under this subsection (c).
(d)(1) It is an offense for any employer whose employee is entitled to the benefits of this chapter:
(A) To require such employee to pay any portion of the insurance premium paid by the employer; or
(B) To deduct any portion of such premium from the wages or salary of such employee.
(2) A violation of subdivision (d)(1) is a Class C misdemeanor.
(3)(A) In addition to any criminal penalty assessed for a violation of subdivision (d)(1), the commissioner is authorized to impose a civil penalty of up to an amount equal to the amount of premiums deducted from such employee's wages or salary.
(B) If a civil penalty is assessed pursuant to subdivision (d)(3)(A), the commissioner shall assess the penalty in a specific dollar amount to be paid directly to the employee.
(e) If at any time the commissioner of commerce and insurance deems the security or bond inadequate or unsafe, the commissioner shall require adequate bond or security.
(f) The commissioner of commerce and insurance may require the employer to secure excess catastrophe reinsurance coverage.
(g) This part shall not apply to policies of insurance against loss from explosions of boilers or flywheels or other similar single catastrophe hazards.
(h) The commissioner of commerce and insurance may issue rules, regulations and orders necessary to properly administer the deposits, bonds and financial evidence as required in this part.
(i) It is the duty of the commissioner of commerce and insurance and the commissioner of labor and workforce development to interchange information as to matters of mutual interest under this chapter.
1919 Pub.Acts, c. 123, § 41; impl. am. by 1923 Pub.Acts, c. 7, §§ 2, 50; 1941 Pub.Acts, c. 90, § 11; impl. am. by 1971 Pub.Acts, c. 137, § 1; 1973 Pub.Acts, c. 379, § 11; 1978 Pub.Acts, c. 759, § 1; impl. am. by 1980 Pub.Acts, c. 534, § 1; 1980 Pub.Acts, c. 457, §§ 1, 2; 1985 Pub.Acts, c. 381, § 1; 1989 Pub.Acts, c. 591, § 113; 1993 Pub.Acts, c. 224, § 1, eff. April 19, 1993; 1995 Pub.Acts, c. 142, § 1, eff. April 24, 1995; 1997 Pub.Acts, c. 533, § 50, eff. June 19, 1997; 1999 Pub.Acts, c. 520, § 41, June 17, 1999; 2000 Pub.Acts, c. 852, § 15;2002 Pub.Acts, c. 544, §§ 1, 2, eff. Mar. 25, 2002; 2003 Pub.Acts, c. 359, §§ 7 to 9, 13, eff. July 1, 2003; 2004 Pub.Acts, c. 962, §§ 34 to 37, 47; 2005 Pub.Acts, c. 390, §§ 9 to 12, eff. June 9, 2005; 2006 Pub.Acts, c. 954, §§ 1, 2, eff. June 20, 2006; 2008 Pub.Acts, c. 841, § 1, eff. April 30, 2008; 2009 Pub.Acts, c. 217, § 1, eff. May 18, 2009; 2009 Pub.Acts, c. 373, §§ 1, 2, eff. July 1, 2009; 2009 Pub.Acts, c. 566, § 12, eff. July 1, 2009; 2010 Pub.Acts, c. 1149, § 7, eff. July 1, 2011.
Formerly Shannon's Code Supp., § 3608a191; mod. 1932 Code, § 6895; mod. 1950 Code Supp., § 6895; § 50-1205.
(a) Every employer, or the employer's insurance carrier unless the employer is self-insured, subject to this chapter, shall file evidence of its compliance with § 50-6-405 with the division of workers' compensation on a form prescribed by the commissioner, within thirty (30) days after procurement or renewal of suitable workers' compensation insurance or qualification as a self-insurer.
(b) If an employer fails to comply with § 50-6-405, then during the continuance of the failure, the employer shall be liable to an injured employee either for compensation as provided in this chapter to be recovered in an action brought in a court of competent jurisdiction for that purpose, or for damages to be recovered as if this chapter had not been enacted, as the employee may elect; and in the case suit for damages is brought instead of a suit to recover compensation under this chapter, the employer, when sued, shall not be allowed to set up as a defense to the action that the employee was negligent, or that the injury was caused by negligence of a fellow servant or fellow employee, or that the employee had assumed the risk of the injury.
(c) Claim of compensation made under this chapter shall be deemed a waiver of the right to sue for damages, and the institution and prosecution to final judgment of a suit for damages shall be deemed a waiver of a right to claim compensation under this chapter.
1919 Pub.Acts, c. 123, § 42; impl. am. by 1923 Pub.Acts, c. 7, §§ 2, 50; 1973 Pub.Acts, c. 379, § 12; 1978 Pub.Acts, c. 759, § 2; impl. am. by 1980 Pub.Acts, c. 534, § 1; 1989 Pub.Acts, c. 591, § 113; 1999 Pub.Acts, c. 520, § 41, eff. June 17, 1999; 2000 Pub.Acts, c. 852, § 16.
Formerly Shannon's Code Supp., § 3608a192; mod. 1932 Code, § 6896; § 50-1206.
Every individual, firm, association, or corporation using the services of one (1) or more persons for pay shall post and maintain in a conspicuous place on the business premises a printed notice regarding workers' compensation as prescribed by the commissioner of labor and workforce development. The notice shall include, at a minimum, a general description of the duties and obligations of both the employer and the employee under the law; the name, address and telephone number of the individual to notify in the event of a work-related injury; a toll-free number and address for the department of labor and workforce development at which employers or employees may obtain additional information; and the name, address and telephone number of a representative of the employer who can confirm whether the individual, firm, association, or corporation is subject to this chapter; and other information required through rules promulgated by the commissioner of labor and workforce development.
1919 Pub.Acts, c. 123, § 43; 1978 Pub.Acts, c. 759, § 3; 1990 Pub.Acts, c. 795, §§ 1 to 3; 1999 Pub.Acts, c. 520, § 41, eff. June 17, 1999; 2002 Pub.Acts, c. 695, § 7, eff. May 1, 2002; 2003 Pub.Acts, c. 359, § 10, eff. July 1, 2003.
Formerly Shannon's Code Supp., § 3608a193; 1932 Code, § 6897l; § 50-1207.
All policies insuring the payment of compensation under this chapter, including all contracts of mutual, reciprocal, or interinsurance, must contain a clause to the effect that:
(1) As between the employer and the insurer or insurers, the notice of or knowledge of the occurrence of the injury on the part of the insured employer shall be deemed notice or knowledge, as the case may be, on the part of the insurer or insurers;
(2) Jurisdiction of the insured for the purpose of this chapter shall be jurisdiction of the insurer or insurers; and
(3) The insurer or insurers shall in all things be bound by and subject to the awards, orders, judgments or decrees rendered against the insured employer, whether a formal party to the proceedings or not.
1919 Pub.Acts, c. 123, § 44; impl. am. by 1980 Pub.Acts, c. 534, § 1.
Formerly Shannon's Code Supp., § 3608a194; 1932 Code, § 6898; § 50-1208.
(a) No policy of insurance against liability arising under this chapter, shall be issued unless it contains an express agreement of the insurer that it will promptly pay to the person entitled to them all benefits conferred by this chapter and all installments of the compensation that may be awarded or agreed upon, and that this obligation shall not be affected by any default of the insured for the injury or by any default in the giving of any notice required by the policy or otherwise.
(b) The agreement shall be construed to be a direct promise by the insurer to the person entitled to compensation under this chapter, and may be enforced directly by that person in that person's name, and the failure, if any, of the insured to comply with any provisions of the policy regarding notice of injury, and such matters shall not be a defense in a suit on the policy by the insured employee or the insured employee's dependents or representatives, unless it can be shown that the insured employee or the insured employee's representatives or dependents aided and abetted in seeking to mislead or defraud the insurer.
1919 Pub.Acts, c. 123, § 45; impl. am. by 1980 Pub.Acts, c. 534, § 1.
Formerly Shannon's Code Supp., § 3608a195; 1932 Code, § 6899; § 50-1209.
The grand jury of every county in the state is given inquisitorial power over all violations of § 50-6-405 relating to employers insuring their compensation liability under this chapter, and is required to inquire into all such violations and to present them to the court by indictment or presentment.
1933 Pub.Acts, c. 71, §§ 1, 2; impl. am. by 1980 Pub.Acts, c. 534, § 1; 1989 Pub.Acts, c. 591, § 113; 2000 Pub.Acts, c. 852, §§ 12, 13.
Formerly mod. 1950 Code Supp., §§ 11583.1, 11583.2; §§ 50-1210, 50-1211.
(a)(1) It is a violation of this section if at any time a construction services provider, as defined in § 50-6-901, misclassifies employees to avoid proper classification for premium calculations by concealing any information pertinent to the computation and application of an experience rating modification factor or by materially understating or concealing:
(A) The amount of the construction services provider's payroll;
(B) The number of the construction services provider's employees; or
(C) Any of the construction services provider's employee's duties.
(2) A construction services provider who violates subdivision (a)(1) shall be subject to a penalty issued by the commissioner or commissioner's designee of up to the greater of one thousand dollars ($1,000) or one and one half (1 1/2 ) times the average yearly workers' compensation premium for such construction services provider based on the appropriate assigned risk plan advisory prospective loss cost and multiplier minus the premium dollars paid on the policy that was the object of the understatement or concealment.
(b) This section shall have no effect upon a construction services provider's or carrier's duty to provide benefits under this chapter or upon any of the construction services provider's or carrier's rights and defenses under this chapter, including, but not limited to, § 50-6-108.
(c) In addition to the penalties provided for in subdivision (a)(2), the department shall refer cases involving business operations that are in violation of this section to the Tennessee bureau of investigation or the appropriate district attorney general for any action deemed necessary under any applicable criminal law.
(d) An individual or entity that is not a successor-in-interest or a principal of a construction services provider who is in violation of this section shall not be liable for the monetary penalties in this section.
(e) The funds collected by the commissioner of labor and workforce development or the commissioner's designee for penalties assessed pursuant to subdivision (a)(2) shall be deposited in the employee misclassification education and enforcement fund established by § 50-6-913 to be administered by the commissioner of labor and workforce development.
(a) The administrator of the division of workers' compensation or the administrator's designee has the authority to issue a subpoena to require an employer doing business in the state to produce any and all books, documents or other tangible things that may be relevant to or reasonably calculated to lead to the discovery of relevant information necessary to determine whether an employer is subject to this chapter, or has secured payment of compensation pursuant to this chapter, and to determine the amount of any monetary penalty that is required to be assessed against an employer for failure to secure payment of compensation pursuant to this chapter.
(b)(1) All monetary penalties assessed pursuant to this section that are based on the average yearly workers' compensation premium shall be calculated by utilizing the appropriate assigned risk plan advisory prospective loss cost and multiplier for the employer as of the date of determination that the employer is subject to this chapter, and has not secured payment of compensation pursuant to this chapter.
(2) If the administrator or administrator's designee determines the period of noncompliance with this chapter, is less than one (1) year, any assessed monetary penalty shall be prorated; however, the monetary penalty shall not be less than an amount equal to one (1) month's premium of the average yearly workers' compensation premium for the employer based on the appropriate assigned risk plan advisory prospective loss cost and multiplier.
(3) If any monetary penalty assessed against an employer is held in abeyance pursuant to this section, the period of abeyance shall be two (2) years. Any abated penalty becomes void upon the expiration of the two-year period; provided, that the employer remained subject to this chapter, during the two-year period and continuously secured payment of compensation as required by law. Any abated penalty becomes voidable, if within the two-year period, the employer provides notice to the administrator that the employer is no longer subject to this chapter and upon concurrence of the administrator that the employer is no longer subject to this chapter, the penalty shall become void. Any abated penalty shall become due and payable immediately if, within the two-year period, the employer continues to be subject to this chapter and fails to secure payment of compensation as required by law.
(4) The administrator shall advise an employer of the amount of any assessed monetary penalty in writing and shall include the date on which the monetary penalty shall be due and payable.
(c)(1) When the records of the division of workers' compensation indicate, or when the division's investigation of an employer indicates, that an employer is subject to this chapter, and has failed to secure payment of compensation as required by this chapter, the division shall so notify the employer by certified letter, return receipt requested.
(2) The division shall require the employer to provide, within fifteen (15) calendar days of the receipt of the certified letter, either proof that the employer had secured payment of compensation as required by this chapter or a verifiable sworn affidavit, with supporting documentation, that the employer is exempt from this chapter.
(3) The certified letter shall also advise the employer of the monetary penalties that may be assessed against the employer if it is determined by the administrator or the administrator's designee that the employer has failed to secure payment of compensation as required by this chapter and shall advise the employer of the criminal penalties to which the employer may be subject for the failure.
(d)(1) If the employer responds to the certified letter within fifteen (15) calendar days of its receipt and the administrator or the administrator's designee determines that the employer has secured payment of compensation as required by this chapter, or that the employer is not subject to this chapter, no monetary penalty shall be assessed.
(2) If the employer responds to the certified letter within fifteen (15) calendar days of its receipt and the administrator or the administrator's designee determines that the employer is subject to this chapter and that the employer has secured the payment of compensation since the date of receipt of the certified letter, the administrator or the administrator's designee shall issue a decision assessing a monetary penalty to the employer equal to one and one-half (1 1/2 ) times the average yearly workers' compensation premium, or if the employer is engaged in the construction industry, as defined in § 50-6-901, the greater of one thousand dollars ($1,000) or one and one-half (1 1/2 ) times the average yearly workers' compensation premium.
(e)(1) If the employer fails to respond to the certified letter within fifteen (15) calendar days of its receipt or the employer responds to the certified letter but does not provide a verifiable sworn affidavit of exemption, the administrator or the administrator's designee shall issue a decision assessing two (2) penalties. The administrator or administrator's designee shall send the decision to the employer by certified mail, return receipt requested, to the employer's last known address, according to the division's records.
(A) The first monetary penalty shall be equal to one and one-half (1 1/2 ) times the average yearly workers' compensation premium, or if the employer is engaged in the construction industry, as defined in § 50-6-901, the greater of one thousand dollars ($1,000) or one and one half (1 1/2 ) times the average yearly workers' compensation premium.
(B) The second monetary penalty shall be equal to the average yearly workers' compensation premium for such employer.
(2) The administrator's or administrator's designee's decision shall notify the employer of all monetary penalties that have been assessed against the employer and the criminal penalties to which the employer may be subject.
(3) The administrator's or administrator's designee's decision shall advise the employer that it may request a contested case hearing to show cause why it should not have been assessed penalties for failure to comply with the workers' compensation law or to challenge the amount of the penalties assessed. Such a request must be made to the division in writing within fifteen (15) calendar days of receipt of the administrator's or administrator's designee's decision assessing monetary penalties. If such request is not timely made, the decision becomes final.
(4) The employer has the burden of proof at the contested case hearing and shall produce documentary evidence that the penalties should be reduced, that the employer is not subject to this chapter, or that the employer was in compliance with this chapter.
(5) The contested case hearing shall be scheduled to be heard in a timely manner, not to exceed forty-five (45) calendar days from the date of the employer's timely written request for a contested case hearing pursuant to subdivision (e)(3).
(f)(1) If the administrator or the administrator's designee determines at the contested case hearing that the employer is not subject to this chapter, or that the employer had secured and continues to secure payment of compensation as required by this chapter, all monetary penalties shall be void.
(2) If the administrator or the administrator's designee determines at the contested case hearing that the employer is subject to this chapter and that the employer has come into compliance with this chapter by securing payment of compensation prior to the date of the contested case hearing, the first monetary penalty equal to one and one-half (1 1/2 ) times the average yearly workers' compensation premium, or if the employer is engaged in the construction industry, as defined in § 50-6-901, the greater of one thousand dollars ($1,000) or one and one-half (1 1/2 ) times the average yearly workers' compensation premium shall be due; however, the second monetary penalty equal to the average yearly workers' compensation premium shall be held in abeyance.
(3) If the administrator or the administrator's designee determines at the contested case hearing that the employer is subject to this chapter and that the employer has failed to secure payment of compensation as required by this chapter, the employer shall be ordered to procure workers' compensation insurance coverage and to provide the division with proof of coverage within five (5) days of the issuance of the order, excluding Saturdays, Sundays and holidays. If the employer obtains workers' compensation insurance coverage and provides the division with proof of coverage as ordered, the first monetary penalty equal to one and one-half (1 1/2 ) times the average yearly workers' compensation premium, or if the employer is engaged in the construction industry, as defined in § 50-6-901, the greater of one thousand dollars ($1,000) or one and one-half (1 1/2 ) times the average yearly workers' compensation premium shall be due; however, the second monetary penalty equal to the average yearly workers' compensation premium shall be held in abeyance.
(4) If the employer fails to obtain workers' compensation insurance coverage as ordered by the administrator or administrator's designee within the required time period, all monetary penalties, totaling two and one-half (2 1/2 ) times the average yearly workers' compensation premium, or if the employer is engaged in the construction industry, as defined in § 50-6-901, the greater of two thousand dollars ($2,000) or two and one-half (2 1/2 ) times the average yearly workers' compensation premium, shall be immediately due and payable.
(g) The administrator shall notify the secretary of state:
(1) When any employer engaged in the construction industry, as defined in § 50-6-901, fails to secure payment of compensation, as required by this chapter; and
(2) When any employer engaged in the construction industry, as defined in § 50-6-901, who has failed to secure payment of compensation, as required by this chapter, has secured payment of such compensation.
(h)(1) In the event an employer engaged in the construction industry, as defined in § 50-6-901, fails to comply with the requirements of this chapter, by failing to secure payment two (2) or more times within a five-year period, then the administrator shall issue a monetary penalty against the employer that is the greater of three thousand dollars ($3,000) or three (3) times the average yearly workers' compensation premium for each second or subsequent violation.
(2)(A) In the event an employer engaged in the construction industry, as defined in § 50-6-901, fails to comply with the requirements of this chapter, by failing to secure payment two (2) or more times within a five-year period, such employer shall be permanently prohibited from obtaining an exemption pursuant to part 9 of this chapter and the administrator shall notify the secretary of state of such prohibition.
(B) For purposes of subdivision (h)(2)(A), “such employer” includes any construction services provider, as defined by § 50-6-901, who applies for or has ever received a workers' compensation exemption pursuant to part 9 of this chapter using the same federal employer identification number as the employer who fails to comply with the requirements of this chapter.
(i)(1) The administrator has the authority to seek an injunction in the chancery court of Davidson County to prohibit an employer from operating its business in any way until the employer has complied with an order by the administrator or the administrator's designee to obtain workers' compensation insurance coverage.
(2) In the event an employer fails to comply with the requirements of this chapter, by failing to secure payment of compensation on a second or subsequent occasion, the administrator shall have the authority to seek an injunction in the chancery court of Davidson County to prohibit the employer from operating its business in any way until the employer provides proof that it has complied with this chapter by securing payment of compensation.
(j) The employer shall have the right to appeal, pursuant to the Uniform Administrative Procedures Act, compiled at title 4, chapter 5, any decision made by or order issued by the administrator or the administrator's designee pursuant to this section.
1992 Pub.Acts, c. 900, § 23;1999 Pub.Acts, c. 520, § 41, eff. June 17, 1999; 2000 Pub.Acts, c. 972, § 4, eff. Jan. 1, 2001; 2010 Pub.Acts, c. 1149, §§ 8 to 12; 2014 Pub.Acts, c. 903, § 8, eff. May 13, 2014.
Every workers' compensation insurer that provides insurance for Tennessee workers' compensation claims, and every workers' compensation division-approved self-insured employer, shall be required to maintain a workers' compensation claims office or to contract with a claims adjuster located within the borders of the state. The claims office or adjuster has authority to commence temporary total disability benefits and medical benefits if so ordered by the claims coordinator or by a court at a show cause hearing.
(a) Any employer who is assigned an experience modification factor for the purpose of determining its workers' compensation premium shall be sent annually, at no charge to the employer, a copy of any information relative to its experience modification factor that is available to an insurance company.
(b) If the experience modification factor notification is not received by the employer prior to the policy renewal date, or the policy anniversary date if different, the experience modification factor shall not be used for premium purposes if its use results in a higher premium for the employer. The mailing of the experience modification factor worksheet shall be sufficient proof of notice, provided the mailing is by certified mail, return receipt requested.
1993 Pub.Acts, c. 370, § 1, eff. May 17, 1993; 2000 Pub.Acts, c. 852, § 6, eff. May 31, 2000.
(a)(1) The commissioner of labor and workforce development has the same authority as the commissioner of commerce and insurance to request and obtain relevant information on workers' compensation claims. All workers' compensation insurers or their designated agents, self insurers and the department of commerce and insurance shall report claims information and other relevant workers' compensation data necessary to determine and analyze costs of the system to the commissioner of labor and workforce development or to the agents as the commissioner may designate. The commissioner may promulgate all reasonable rules and regulations necessary to implement this section in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
(2) In promulgating rules concerning data collection, the commissioner of labor and workforce development shall include appropriate elements of the Detailed Claim Information Reporting Model Regulation for Workers' Compensation Insurance issued by the National Association of Insurance Commissioners, and other information the commissioner deems necessary. The commissioner shall also consult with the advisory council on workers' compensation in defining the information needed to permit management of the system. The commissioner shall also report to the commerce and labor committee of the senate and the consumer and human resources committee of the house of representatives at the request of the chairs of the committees.
(b) The division of workers' compensation shall gather, and has the duty to analyze and report, information relevant to the functioning of the workers' compensation system to the advisory council on workers' compensation, the general assembly and the governor. The division shall respond to information requests concerning workers' compensation issues from the advisory council on workers' compensation, the general assembly and the governor.
(c) The commissioner of labor and workforce development shall enforce requests pursuant to this section in the same manner and with the same authority as the commissioner of commerce and insurance possesses with respect to violations of this part and title 56. The commissioner shall also notify the principal corporate office of any insurer of any refusal to comply with such requests. The commissioner's enforcement authority under this subsection (c) applies only to the commissioner's efforts to obtain relevant data as provided in subsections (a) and (b).
1996 Pub.Acts, c. 944, § 24, eff. July 1, 1996; 1998 Pub.Acts, c. 1024, § 4, eff. July 1, 1998; 1999 Pub.Acts, c. 520, § 41, eff. June 17, 1999; 2011 Pub.Acts, c. 410, § 10(e), eff. July 1, 2011; 2013 Pub.Acts, c. 236, § 31, eff. April 19, 2013.
In cases where an employer disputes an experience modification factor assigned to the employer, the insurer shall notify the employer of the employer's right to submit a request for review and to appeal to the commissioner of commerce and insurance pursuant to § 56-5-309(b).
1996 Pub.Acts, c. 944, § 27, eff. July 1, 1996.
(a)(1) The department of commerce and insurance shall approve rating plans for workers' compensation insurance that give specific identifiable consideration in the setting of rates to employers that implement a drug-free workplace program pursuant to rules adopted by the division of workers' compensation of the department of labor and workforce development. The plans must take effect January 1, 1997, must be actuarially sound, and must state the savings anticipated to result from the drug testing. The credit shall be at least five percent (5%) unless the commissioner of commerce and insurance determines that five percent (5%) is actuarially unsound.
(2) The commissioner is also authorized to develop a schedule of premium credits for workers' compensation insurance for employers who have safety programs that attain certain criteria for safety programs. The commissioner shall consult with the commissioner of labor and workforce development in setting the criteria.
(b) The department of commerce and insurance shall apply the drug-free workplace program credit separately to each individual company for an employer having more than one (1) company under one (1) workers' compensation insurance policy. However, no credit given to an individual company may be combined with any credit given to any other company of the common employer or to the common employer itself.
1996 Pub.Acts, c. 944, § 51, eff. July 1, 1996; 1999 Pub.Acts, c. 520, § 41, eff. June 17, 1999; 2005 Pub.Acts, c. 390, § 14, eff. June 9, 2005.
(a) Notwithstanding any other provision of this part or of title 56 to the contrary, in order to assure that injured employees are treated fairly and to assure that claims are handled in an appropriate and uniform manner, the commissioner of labor and workforce development shall set standards by rule governing the adjustment and settlement of workers' compensation claims by insurance carriers and self-insured employers. The standards may include, but are not limited to, standards governing contact with an employee after notice of injury has been given, the processing of claims and procedures for making an offer of settlement.
(b) The commissioner shall promulgate rules and regulations to effectuate the purposes of this section. The rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
(c) The commissioner of labor and workforce development shall enforce standards adopted pursuant to this section in the same manner and with the same authority as the commissioner of commerce and insurance possesses with respect to violations of this part and title 56. The commissioner shall also notify the principal corporate office of any insurer of any violations of the standards.
1996 Pub.Acts, c. 944, § 53, eff. July 1, 1996, 1999 Pub.Acts, c. 520, § 41, eff. June 17, 1999.
It is the intent of the general assembly that upon the filing of a claim pursuant to this chapter, the insurer is encouraged to provide semi-annual reports to the employer, at no cost to the employer, regarding the status of the claim.
(a) The commissioner of labor and workforce development may request and obtain information regarding employer workers' compensation insurance policies in order to ensure compliance with the law. Except as otherwise provided in subsection (b), any information relating to workers' compensation insurance policies obtained by the commissioner pursuant to this subsection (a) shall be deemed confidential and shall not constitute a public record, as defined in § 10-7-503; provided, such information may be used by any state agency, or vendor designated by the state, for the purpose of ensuring compliance with the law.
(b) The following information obtained by the commissioner pursuant to subsection (a) shall constitute a public record, as defined in § 10-7-503, and shall be open for personal inspection by any citizen of this state:
(1) Employer name and business address;
(2) Workers' compensation insurance carrier name and business address; and
(3) Workers' compensation insurance policy number, policy effective date and policy expiration date.
(a) In order to promote health and safety in places of employment in this state, every public or private employer that is subject to this chapter, shall establish and administer a safety committee in accordance with rules adopted pursuant to § 50-6-502, if the commissioner of labor and workforce development finds that the employer has an experience modification factor or rate applied to the premium greater than or equal to one and twenty hundredths (1.20).
(b) In making determinations under subsection (a), the commissioner of labor and workforce development shall utilize the most recent statistics regarding experience modification rates.
(c)(1) Every insurance company authorized to write workers' compensation insurance shall submit its modification factors or rates for each of its workers' compensation insureds to the commissioner of commerce and insurance, when requested by the commissioner. On request from the commissioner of labor and workforce development, the commissioner of commerce and insurance shall provide the department of labor and workforce development with the information.
(2) The commissioner of labor and workforce development shall establish safety committee requirements for self-insured employers pursuant to rules promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
(3) The commissioner of commerce and insurance may assess a civil penalty of up to two thousand dollars ($2,000) per incident for failure to comply with subdivision (c)(1).
1992 Pub.Acts, c. 900, § 5;1999 Pub.Acts, c. 520, § 41, eff. June 17, 1999; 2005 Pub.Acts, c. 390, § 13, eff. June 9, 2005.
(a) In carrying out § 50-6-501, the commissioner of labor and workforce development shall promulgate rules that include, but are not limited to, provisions:
(1) Prescribing the membership of the committees to ensure equal numbers of hourly employees and employer representatives as well as specifying the frequency of meetings;
(2) Requiring employers to make adequate written records of each meeting and to maintain the records subject to inspection by Tennessee occupational safety and health administration representatives; and
(3) Requiring employers to compensate employee representatives on safety committees at the regular hourly wage while the employees are engaged in safety committee training or are attending safety committee meetings.
(b) The duties and functions of the safety committee shall include, but are not limited to:
(1) Assisting in establishing procedures for workplace safety inspections by the committee;
(2) Assisting in establishing procedures for investigating all safety incidents, accidents, illnesses and deaths; and
(3) Assisting in evaluating accident and illness prevention programs.
(c) The employer shall provide training for safety committee members in their duties and responsibilities provided in subsection (b).
(d) An employer operating under a collective bargaining agreement that contains provisions regulating the formation and operation of a safety committee that meets or exceeds the minimum requirements of this section and § 50-6-501 may apply to the commissioner of labor and workforce development for a determination that the employer meets the requirements of this section and § 50-6-501.
1992 Pub.Acts, c. 900, § 5;1999 Pub.Acts, c. 520, § 41, eff. June 17, 1999.
When an employee incurs an injury compensable under this chapter, the discussion or furnishing, or failure to discuss or furnish, or failure to enforce any safety or health provision, shall not subject a labor organization representing the injured employee to any civil liability for the injury.
(a) This part shall be known and may be cited as the “Workers' Compensation Insurance Fund Act of 1992.”
(b)(1) There shall be established a competitive state workers' compensation insurance fund to insure employers under this chapter.
(2) This fund shall operate as a nonprofit insurance company and is subject to all requirements of law and regulation as any other insurer offering workers' compensation insurance in Tennessee pursuant to title 56 and this chapter.
(3) This fund shall act in addition to, and not as a substitute for, an assigned risk pool.
(4) The fund shall be required to maintain an adequate rate and any assessment for accumulated liabilities shall be made only against those insured within the state workers' compensation insurance fund. No assessments shall be made against or for the Tennessee Guaranty Association, as described in title 56, chapter 12, and no assessment shall be made against a private insurer or any entity authorized under § 50-6-405(c), not participating in the state workers' compensation insurance fund. The policies written by the fund shall be assessable against the policyholders.
1992 Pub.Acts, c. 900, § 26;1994 Pub.Acts, c. 979, § 2, eff. May 10, 1994.
As used in this part, unless the context otherwise requires:
(1) “Board” means the board of directors of the competitive state compensation insurance fund;
(2) “Fund” means the competitive state compensation insurance fund; and
(3) “Personal injury” or “injury” has the meaning given to it in § 50-6-102.
1992 Pub.Acts, c. 900, § 26;1994 Pub.Acts, c. 979, § 3, eff. May 10, 1994.
The fund shall be created as a nonprofit independent public corporation for the purpose of insuring employers against liability for personal injuries for which their employees may be entitled to benefits under this part. The fund shall be organized as a domestic insurance company.
(a) In the event the commissioner of commerce and insurance elects to make the fund operational pursuant to § 56-5-314, the existing board of directors shall terminate and a new board shall be appointed within sixty (60) days of the election.
(b) The board of directors shall initially consist of seven (7) members who are knowledgeable concerning the workers' compensation system. The state treasurer shall be an ex officio member. Initially, the speakers of the senate and the house of representatives and the governor shall each appoint one (1) member for a two-year term and one (1) member for a three-year term. Each director shall hold office until a successor is appointed and qualifies. The board shall annually elect a chair from among its members and other officers it deems necessary for the performance of its duties.
(c)(1) Once the fund is operational and the commissioner of commerce and insurance certifies it as a fund able to effectively operate under this part and title 56, then on the next scheduled expiration of board members' terms:
(A) The members shall be elected by policyholders; and
(B) The state treasurer shall, on expiration of the treasurer's term, cease to be a member of the board.
(2) The successor board shall consist of seven (7) members selected by policyholders for three-year terms.
1992 Pub.Acts, c. 900, § 26;1996 Pub.Acts, c. 944, § 28, eff. Jan. 1, 1997.
The management and control of the fund is vested solely in the board.
(a)(1) The board is vested with full power, authority, and jurisdiction over the fund.
(2) The board may perform all acts necessary or convenient in the exercise of any power, authority, or jurisdiction over the fund, either in the administration of the fund or in connection with the insurance business to be carried on by it under this part, as fully and completely as the governing body of a private insurance carrier to fulfill the objectives and intent of this part.
(b) The board may invest assets as permitted by § 56-3-402.
The members of the board and officers or employees of the fund shall not be liable personally, either jointly or severally, for any debt or obligation created or incurred by the fund.
The fund shall insure an employer against any workers' compensation claim arising out of and in the course of employment as fully as any other insurer.
For purposes of exercising the specific powers granted in this part and carrying out the other purposes of this part, the fund may:
(1) Sue and be sued;
(2) Have a seal and alter it at will;
(3) Make, amend, and repeal rules relating to the conduct of the business of the fund;
(4) Enter into contracts relating to the administration of the fund;
(5) Rent, lease, buy, or sell property in its own name and may construct or repair buildings necessary to provide space for its operations;
(6) Declare a dividend when there is an excess of assets over liabilities, and minimum surplus requirements;
(7) Pay medical expenses, rehabilitation expenses, compensation due claimants of insured employers, pay salaries, and pay administrative and other expenses;
(8) Hire personnel and set salaries and compensation; and
(9) Perform all other functions and exercise all other powers of a domestic insurance company that are necessary, appropriate, or convenient to administer the fund.
All premiums and other money paid to the fund, all property and securities acquired through the use of money belonging to the fund, and all interest and dividends earned upon money belonging to the fund and deposited or invested by the fund are the sole property of the fund and shall be used exclusively for the operation and obligations of the fund. The money of the fund is not state property. The employees of the fund shall not be considered state employees.
The fund shall not receive any state appropriation at any time other than as provided by § 50-6-621.
The fund shall not be considered a state agency for any purpose.
Private independent insurance agents licensed to sell workers' compensation insurance in this state may sell insurance coverage for the fund according to rules adopted by the board. The board shall, by rule, also establish a schedule of commissions that the fund will pay for the services of an agent.
The board shall submit an annual report to the governor and general assembly indicating the business done by the fund the previous year and containing a statement of the resources and liabilities of the fund.
1992 Pub.Acts, c. 900, § 26;1994 Pub.Acts, c. 979, § 5, eff. May 10, 1994.
The board shall annually report to the general assembly, governor, and the director of the division of state audit the operations of the fund up to that date. The report shall include, but not be limited to:
(1) The volume of premiums insured through the state fund and its share of the state workers' compensation insurance market;
(2) The percent division of premium dollars among various types of benefit payments and administrative costs for policies and claims under the state fund;
(3) The average rate of return enjoyed by the state fund on its invested assets;
(4) Recommendations concerning desirable changes in the state fund to promote its prompt and efficient administration of policies and claims;
(5) A recommendation to the general assembly and governor regarding the continued operation of the fund;
(6) A full report concerning reserve practices including any actuarial analysis of the funds reserved; and
(7) Any other information the director deems appropriate.
1992 Pub.Acts, c. 900, § 26;1994 Pub.Acts, c. 979, § 5, eff. May 10, 1994.
The state is authorized to issue bonds in accordance with law or appropriate funds in the general appropriations act to the competitive state compensation insurance fund for start-up costs to be repaid pursuant to terms set by authorizing legislation for issuance of the bonds or appropriated funds. The start-up costs may be utilized by the fund to meet the reserve and capitalization requirements of the department of commerce and insurance. The funds set aside for this purpose shall be considered an admitted asset for regulatory purposes. The time for the fund repaying the appropriations may be extended by the funding board.
1992 Pub.Acts, c. 900, § 26;1994 Pub.Acts, c. 979, § 1, eff. May 10, 1994; 1995 Pub.Acts, c. 448, § 1, eff. June 12, 1995.
The fund shall begin providing workers' compensation insurance coverage when the board determines that the fund is able to do so and all requirements under state law have been met. The fund shall not issue insurance policies to employers until the approval of the director of the division of state audit has been obtained.
1992 Pub.Acts, c. 900, § 26;1994 Pub.Acts, c. 979, § 6, eff. May 10, 1994.
Before the fund established by this part shall enter into any contract, except for consulting services, or issue any bonds, or incur any liability, the board of directors shall submit organizational and operating plans for the fund to a review committee for approval. The review committee shall consist of the commissioners of labor and workforce development, commerce and insurance, and finance and administration, the state treasurer, and the comptroller of the treasury. The review committee shall approve the operational and organizational plans if it determines the plans to be in accord with this part and to be fiscally sound and responsible. If the committee approves the plan, then the fund may become fully operational. If the committee does not approve the plan, then the committee shall make appropriate recommendations to the board of directors, governor, and the speakers of the senate and house of representatives concerning any deficiencies.
1992 Pub.Acts, c. 900, § 26;1994 Pub.Acts, c. 979, § 7, eff. May 10, 1994.
As used in this part, unless the context otherwise requires:
(1) “Association captive insurance company” means an association captive insurance company described in § 56-13-102, operated by an association described in § 56-13-102;
(2) “Electric cooperative” means an electric cooperative or electric membership corporation, whether organized or operating under title 65, chapter 25, or similar statutes of any other state, that distributes electric power purchased from the Tennessee Valley authority (TVA);
(3) “Interlocal agreement” means an agreement authorized by title 12, chapter 9, or by this part, or by both; and
(4) “Municipal utility” means any governmental entity as defined in § 29-20-102, having a system for the distribution of electric power, whether operated under the authority of a board of the governmental entity, by a department of the governmental entity or under the authority of a board created pursuant to the Municipal Electric Plant Law of 1935, compiled in title 7, chapter 52, or by the authority of any other law of the state, and that operates an electric generation or distribution system that distributes electric power purchased from the Tennessee Valley authority; and also includes any municipality, county or other political subdivision of another state, whether operated under a board or as a county or municipal department, that distributes electric power purchased from the Tennessee Valley authority.
(a) For the purpose of insuring or self-insuring the obligations and liabilities under this chapter, municipal utilities and electric cooperatives are authorized to enter into interlocal agreements to pool their liabilities pursuant to § 29-20-401, as if each electric cooperative were a governmental entity for purposes of § 29-20-401, and as if each cooperative were a public agency for purposes of title 12, chapter 9, and under which the interlocal agreement is administered by an association captive insurance company or any of its affiliates or subsidiaries. An interlocal arrangement that is administered by an association captive insurance company may also provide for the insuring or self-insuring of obligations and liabilities arising under the federal Longshoremen's and Harbor Workers' Compensation Act, compiled in 33 U.S.C. §§ 901-950, as long as the company has obtained any necessary approvals by the appropriate federal agencies.
(b) The general assembly finds and determines that participation in the interlocal agreements by electric cooperatives and municipal utilities provides a mutual benefit to help reduce the expense of operations of municipal utilities and electric cooperatives and hence reduces the cost of electricity for the citizens of the state, and finds that all contributions of financial and administrative resources and associated costs and expenses made by a municipal utility pursuant to an interlocal agreement, as authorized in this part, are made for a public and governmental purpose, and that the contributions benefit the contributing municipal utilities. To the extent that the interlocal agreements provide for the respective parties to indemnify or hold harmless each other from certain liabilities arising out of participation in the pooling agreement, the provisions are authorized in accordance with the findings of the general assembly.
1995 Pub.Acts, c. 488, § 2, eff. June 12, 1995; 2010 Pub.Acts, c. 848, § 1, eff. April 30, 2010.
An association captive insurance company may, directly or through an entity it may create and control, enter into agreements with participating governmental entities or electric cooperatives under § 29-20-401, to serve as administrator or act as the special fund or legal or administrative entity of the pooled financial and administrative resources thereunder and under this part, and may charge fees and costs for such services as administrator. The company may provide insurance or reinsurance for excess losses above the amounts that are retained by the pooled financial resources, the same as if it were created by governmental entities under § 29-20-401(e), for those purposes, an electric cooperative shall be deemed to be a governmental entity. To the extent that an association captive insurance company shall be deemed to become a party to an interlocal agreement, it shall be deemed to have the status of a public agency for those purposes. The administrative activities and operations of the fund or entity, whether by, through or under the direction or supervision of the association captive insurance company or otherwise, shall be subject to § 29-20-401(d), and certificates of compliance may be issued as authorized by § 29-20-401(c)(2).
1995 Pub.Acts, c. 488, § 3, eff. June 12, 1995.
(a) Nothing in this part shall be construed to confer upon any electric cooperative any immunity from liability for damages for injuries to persons or property granted to a governmental entity under the provisions of the Tennessee Governmental Tort Liability Act, compiled in title 29, chapter 20, nor to prevent a municipal utility from exercising any right, privilege or option it may have under this chapter.
(b) Nothing in this part shall preclude a municipal utility or electric cooperative from participating in any other insured, self-insured, or risk-pooling arrangement permitted under any other law of this state.
(c) Nothing in this part shall be deemed to be an implied repeal of any of the provisions of title 65, chapter 25.
This part shall be liberally construed to permit electric cooperatives and municipal utilities to enter into agreements to pool their resources to provide for satisfaction of obligations under this chapter, as if electric cooperatives were governmental entities under § 29-20-401 or public agencies under title 12, chapter 9.
1995 Pub.Acts, c. 488, § 7, eff. June 12, 1995.
For purposes of this part, unless the context otherwise requires:
(1) “Active and in good standing as reflected in the records of the secretary of state” means a corporation, limited liability company, or partnership that is in existence, registered or authorized to transact business in this state as reflected in the records of the secretary of state; and in the case of a corporation, limited liability company, limited liability partnership, or limited partnership, such entity is in good standing with the Tennessee department of revenue;
(2) “Board” means the state board for licensing contractors;
(3) “Commercial construction project” means any construction project that is not:
(A) The construction, erection, remodeling, repair, improvement, alteration or demolition of one (1), two (2), three (3) or four (4) family unit residences not exceeding three (3) stories in height or accessory use structures in connection with the residences;
(B) The construction, erection, remodeling, repair, improvement, alteration or demolition of any building or structure for use and occupancy by the general public which, pursuant to § 62-6-112(f)(2), a small commercial building contractor is authorized to bid on and contract for; or
(C) Performed by any person, municipality, county, metropolitan government, cooperative, board, commission, district, or any entity created or authorized by public act, private act or general law to provide electricity, natural gas, water, waste water services, telephone service, telecommunications service, cable service, or Internet service or any combination thereof, for sale to consumers in any particular service area;
(4) “Construction project” means the construction, erection, remodeling, repair, improvement, alteration or demolition of a building, structure or other undertaking; provided, that if a general contractor contracts to erect, remodel, repair, improve, alter or demolish multiple buildings, structures or undertakings in one (1) contract, all such buildings, structures or undertakings described in such contract shall constitute one (1) construction project;
(5) “Construction services provider” or “provider” means any person or entity engaged in the construction industry;
(6) “Corporate officer” or “officer of a corporation” means any person who fills an office provided for in the corporate charter or articles of incorporation of a corporation that in the case of a domestic corporation is formed under the laws of this state pursuant to title 48, chapters 11-68, or in the case of a foreign corporation is authorized to transact business in this state pursuant to title 48, chapters 11-68; provided, that a domestic or foreign corporation is active and in good standing as reflected in the records of the secretary of state;
(7) “Direct labor” means the performance of any activity that would be assigned to the contracting group as those classifications are designated by the rate service organization designated by the commissioner of commerce and insurance as provided in § 56-5-320, but does not include:
(A) Classification code 5604, or any subsequent classification code, for construction executives, supervisors, or foremen that are responsible only for the oversight of laborers; or
(B) Classification code 5606, or any subsequent classification code, for project managers, construction executives, construction managers and construction superintendents having only administrative or managerial responsibilities for construction projects by exercising operational control indirectly through job supervisors or foremen;
(8) “Engaged in the construction industry” means any person or entity assigned to the contracting group as those classifications are designated by the rate service organization designated by the commissioner of commerce and insurance as provided in § 56-5-320; provided, that where more than one (1) classification applies, the governing classification, as that term is defined by the rate service organization designated by the commissioner of commerce and insurance as provided in § 56-5-320, shall be used to determine whether the person or entity is engaged in the construction industry;
(9) “Family-owned business” means a business entity in which members of the same family of the applicant have an aggregate of at least ninety-five percent (95%) ownership of such business;
(10) “General contractor” means the person or entity responsible to the owner or developer for the supervision or performance of substantially all of the work, labor, and the furnishing of materials in furtherance of the construction, erection, remodeling, repair, improvement, alteration or demolition of a building, structure or other undertaking and who contracts directly with the owner or developer of the building, structure or other undertaking; “general contractor” includes a prime contractor;
(11) “Good standing with the Tennessee department of revenue” means the secretary of state has received and verified through electronic confirmation or a certificate of tax clearance issued by the commissioner of revenue that a corporation, limited liability company, limited liability partnership, or limited partnership is current on all fees, taxes, and penalties to the satisfaction of the commissioner;
(12) “Member of a limited liability company” means any member of a limited liability company formed pursuant to title 48, chapters 201-249 that is active and in good standing as reflected in the records of the secretary of state;
(13) “Members of the same family of the applicant” means parents, children, siblings, grandparents, grandchildren, stepparents, stepchildren, stepsiblings, or spouses of such, and includes adoptive relationships;
(14) “Partner” means any person who is a member of an association that is formed by two (2) or more persons to carry on as co-owners of a business or other undertaking for profit and such association is active and in good standing as reflected in the records of the secretary of state;
(15) “Person” means only a natural person and does not include a business entity;
(16) “Registry” means the construction services provider workers' compensation exemption registry established pursuant to this part and maintained by the secretary of state; and
(17) “Sole proprietor” means one (1) person who owns a form of business in which that person owns all the assets of such business.
2010 Pub.Acts, c. 1149, § 13, eff. March 1, 2011; 2011 Pub.Acts, c. 422, § 3.
(a) Except as provided in subsection (b), all construction services providers shall be required to carry workers' compensation insurance on themselves. The requirement set out in this subsection (a) shall apply whether or not the provider employs fewer than five (5) employees.
(b) To the extent there is no restriction on applying for an exemption pursuant to § 50-6-903, a construction services provider shall be exempt from subsection (a) if the provider:
(1) Is a construction services provider rendering services on a construction project that is not a commercial construction project and is listed on the registry;
(2) Is a construction services provider rendering services on a commercial construction project, is listed on the registry and such provider is rendering services to a person or entity that complies with § 50-6-914(b)(2);
(3) Is covered under a policy of workers' compensation insurance maintained by the person or entity for whom the provider is providing services;
(4) Is a construction services provider performing work directly for the owner of the property; provided, however, that this subdivision (b)(4) shall not apply to a construction services provider who acts as a general or intermediate contractor and who subsequently subcontracts any of the work contracted to be performed on behalf of the owner;
(5) Is a construction services provider building a dwelling or other structure, or performing maintenance, repairs, or making additions to structures, on the construction service provider's own property; or
(6) Is a provider whose employment at the time of injury is casual as provided in § 50-6-106.
(c) A subcontractor engaged in the construction industry under contract to a general contractor engaged in the construction industry may elect to be covered under any policy of workers' compensation insurance insuring the general contractor upon written agreement of the general contractor, regardless of whether such subcontractor is on the registry established pursuant to this part, by filing written notice of the election, on a form prescribed by the commissioner of labor and workforce development, with the department. It is the responsibility of the general contractor to file the written notice with the department. Failure of the general contractor to file the written notice shall not operate to relieve or alter the obligation of an insurance company to provide coverage to a subcontractor when the subcontractor can produce evidence of payment of premiums to the insurance company for the coverage. The election shall in no way terminate or affect the independent contractor status of the subcontractor for any other purpose than to permit workers' compensation coverage. The election of coverage may be terminated by the subcontractor or general contractor by providing written notice of the termination to the department and to all other parties consenting to the prior election. The termination shall be effective thirty (30) days from the date of the notice to all other parties consenting to the prior election and to the department.
(d) Nothing in this part shall be construed as exempting or preventing a construction services provider from carrying workers' compensation insurance for any of its employees. The requirement set out in this subsection (d) shall apply whether or not the provider employs fewer than five (5) employees.
2010 Pub.Acts, c. 1149, § 13, eff. March 1, 2011; 2011 Pub.Acts, c. 422, § 4.
(a) Any construction services provider who meets one (1) of the following criteria may apply for an exemption from § 50-6-902(a):
(1) An officer of a corporation who is engaged in the construction industry; provided, that no more than five (5) officers of one (1) corporation shall be eligible for an exemption;
(2) A member of a limited liability company who is engaged in the construction industry if such member owns at least twenty percent (20%) of such company;
(3) A partner in a limited partnership, limited liability partnership or a general partnership who is engaged in the construction industry if such partner owns at least twenty percent (20%) of such partnership;
(4) A sole proprietor engaged in the construction industry; or
(5) An owner of any business entity listed in subdivisions (a)(1)-(3) that is family-owned; provided, that no more than five (5) owners of one (1) family-owned business may be exempt from § 50-6-902(a).
(b) A construction services provider may be eligible for and may utilize multiple exemptions if the construction services provider meets the requirements set out in subsection (a) for each such exemption and complies with § 50-6-904 for each such exemption in which the construction services provider seeks to obtain; provided, however, that a construction services provider applying for a second or subsequent exemption shall not be required to pay the fees set out in § 50-6-912(a)(1) and (2), but shall instead pay the fee set out in § 50-6-912(a)(9) for each subsequent workers' compensation exemption registration and shall pay the fee set out in § 50-6-912(a)(10) for each subsequent registration renewal.
(c)(1) A construction services provider who is an individual and who does not meet the criteria established in subsection (a), but who is a member of a recognized religious sect or division and is an adherent of established tenets or teachers of such sect or division by reason of which such construction services provider is conscientiously opposed to acceptance of the benefits provided by this chapter may apply for an exemption from § 50-6-902(a); provided, however, that no more than five (5) individuals associated with one business entity may be exempt from § 50-6-902(a).
(2) Any applicant applying for an exemption from § 50-6-902(a) pursuant to subdivision (c)(1) shall provide an affidavit from the leader of the recognized religious sect or division stating that the individual filing the application for an exemption is a member of the recognized religious sect or division and is exempt, as evidenced by the Internal Revenue Service Form 4029, or similar form used by the internal revenue service. The leader of the recognized religious sect or division shall notify the secretary of state and department, in writing, if the member of the recognized religious sect or division who obtains an exemption from § 50-6-902(a) leaves or withdraws membership from the recognized religious sect or division.
(3) Each individual employee of a construction services provider who meets the religious exemption requirements pursuant to this subsection (c) shall pay the fees set out in § 50-6-912(a)(1) and (a)(2). Any collected fees shall be deposited into the employee misclassification education and enforcement fund, pursuant to § 50-6-913.
2010 Pub.Acts, c. 1149, § 13, eff. March 1, 2011; 2011 Pub.Acts, c. 422, § 5;2013 Pub.Acts, c. 476, § 1.
(a)(1)(A) Any construction services provider applying for an exemption from § 50-6-902(a) who has not been issued a license by the board shall obtain a construction services provider registration from the secretary of state at the same time such provider applies for such exemption.
(B) The secretary of state is authorized and directed to issue the construction services provider registration on behalf of the board. The secretary of state shall issue an identification number assigned to the provider's registration. The board shall obtain such identification number and other identifying information from the secretary of state.
(2) Any construction services provider requesting exemption from § 50-6-902(a) shall submit an application along with the required filing fees to the secretary of state. The applicant shall provide sufficient documentation for the secretary of state to assure that such applicant meets the requirements set out in § 50-6-902, including, but not limited to:
(A) The applicant's full legal name;
(B) The applicant's birth month;
(C) The applicant's physical address; provided, that the applicant may provide a post office box number for purposes of receiving mail from the secretary of state, as long as the applicant also provides a physical address for the business entity for which the applicant is an officer, member, partner or owner;
(D) A telephone number through which the applicant can be reached;
(E) The name of the business entity through which the applicant is seeking the workers' compensation exemption;
(F) The federal employer identification number issued to the applicant if a sole proprietor or a business entity for which the applicant is an officer, member, partner or owner seeking exemption pursuant to § 50-6-903, and the last four (4) digits of the applicant's social security number; provided, however, that if an applicant seeks an exemption pursuant to § 50-6-903(c), the applicant may provide the last four (4) digits of a control number issued to the applicant by the social security administration instead of the last four (4) digits of the applicant's social security number;
(G) The contractor license number issued by the board to such applicant or the construction services provider registration number issued by the secretary of state to such applicant;
(H) A current license issued by a local government pursuant to § 67-4-723, if the business entity through which the applicant is seeking the workers' compensation exemption is required by law to obtain such license;
(I) Any other information the secretary of state deems necessary to identify such applicant; and
(J) If the construction services provider is applying for an exemption pursuant to the criteria set out in § 50-6-903(c), the provider shall submit a copy of an approved Internal Revenue Service Form 4029 or similar form used by the internal revenue service, to show that an application for exemption from social security and medicare taxes and waiver of benefits has been approved for such provider applying for an exemption pursuant to this part.
(3) The secretary of state shall verify that the applicant meets the qualifications set out in § 50-6-902 upon a review of its records and the records provided by such applicant.
(b) The application shall be on a form designed by the secretary of state and shall contain a statement that specifies the eligibility requirements for exemption, contain an attestation that the applicant meets the eligibility requirements and contain a statement that a false statement on such application is subject to the penalties of perjury set out in § 39-16-702.
(c) The application, as well as a process for submission of such application, shall be available through the secretary of state's web site or by contacting the secretary of state's office in person or by mail.
2010 Pub.Acts, c. 1149, § 13, eff. March 1, 2011; 2013 Pub.Acts, c. 476, §§ 2, 3.
(a) If a construction services provider's application delivered to the secretary of state meets the requirements of this part, as determined by the secretary of state, the secretary of state shall file the application and:
(1) Issue a notice to such provider that the provider is listed on the registry; and
(2) Publish on the registry, contained on the secretary of state's web site, the provider's name and other identifying information, including, but not limited to:
(A) The full legal name of the provider;
(B) The specific identification number issued to the provider by the secretary of state upon filing the application;
(C) The period in which the provider is exempt, including the date and time in which such exemption expires; and
(D) Any other identifying information the secretary of state deems necessary for the public to identify such provider.
(b) The provider shall not be exempt from the requirement of § 50-6-902(a) until the provider's application is filed by the secretary of state and the applicant's name and other identifying information is published on the registry. If a provider's exemption is revoked pursuant to § 50-6-908, such revocation is effective upon the provider's name and other identifying information no longer appearing on the registry after being removed by the secretary of state pursuant to § 50-6-908.
(c) A provider listed on the registry may correct a document filed with the secretary of state if the document contains an incorrect statement or was defectively executed, attested, sealed, verified or acknowledged. A document shall be corrected in a manner established by the secretary of state.
(d) A provider listed on the registry shall maintain a current physical mailing address with the secretary of state. A change of address shall be made in a manner established by the secretary of state.
(a) If the secretary of state refuses to file an application and list the construction services provider on the registry, the secretary of state shall return such application to the provider within ten (10) business days after the document was received for filing, together with a brief, written explanation of the reason for the secretary of state's refusal to file.
(b) If the secretary of state refuses to file an application and list a provider on the registry, the provider may appeal the refusal to the chancery court of Davidson County. The appeal shall be commenced by petitioning the court to compel listing such provider on the registry and shall attach to the petition the application and the secretary of state's explanation of the secretary of state's refusal to file.
(c) The court may reverse or modify the actions of the secretary of state if the rights of the provider have been prejudiced because the secretary of state's actions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the secretary of state;
(3) Made upon unlawful procedure; or
(4) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
(d) After any hearing deemed necessary by the court, the court may summarily order the secretary of state to list such provider on the registry or take other action the court considers appropriate.
(e) The court's final decision may be appealed as in other civil proceedings.
(a) The exemption obtained pursuant to this part shall be valid for two (2) years from a date and time set by the secretary of state. No more than sixty (60) days prior to the expiration of the exemption period, a construction services provider may file an application to renew an exemption. Renewal of an exemption shall be made in a manner established by the secretary of state.
(b) The secretary of state shall remove the construction services provider's name from the registry at the close of business on the day the provider's exemption expires. If the exemption expires on a day that state offices are closed or the secretary of state's office is closed, the exemption shall expire at the close of business on the next business day.
(c) A construction services provider whose registration expires under this section may renew the exemption by following the procedure outlined in § 50-6-904.
(a)(1) Any construction services provider who obtains an exemption and subsequently chooses to revoke such exemption shall:
(A) Give notice to the person or entity for whom the provider may currently be providing services of the revocation in accordance with a form prescribed by the secretary of state;
(B) Attest as to whether or not the provider has any employment related injuries at the time of such revocation that occurred while providing services to a person or entity that did not provide coverage under a policy of workers' compensation; and
(C) Within twenty-four (24) hours of such revocation, notify any person or entity for whom the provider is currently providing services that the provider has voluntarily revoked the provider's workers' compensation exemption.
(2) Upon filing such notice, the secretary of state shall remove the construction services provider's name from the registry.
(3) A construction services provider who revokes an exemption under this section may reapply for an exemption by following the procedure set forth in § 50-6-904.
(b)(1) In addition to the revocation set out in subsection (a), a workers' compensation exemption shall be revoked by the secretary of state upon:
(A) Notification from the board that the board has revoked or suspended any license issued to the construction services provider by the board, including a license issued to a business entity through which the construction services provider obtained such an exemption. For purposes of this subdivision (b)(1)(A), if a construction services provider's license is revoked, whether or not such license is in the provider's individual name or in the name of a business entity through which the provider obtained an exemption, then any exemption obtained through such business entity shall be revoked;
(B) Notification from the department of any violations of § 50-6-412 by the construction services provider, including any violation against a business entity through which the construction services provider obtained such an exemption. For purposes of this subdivision (b)(1)(B), if a construction services provider has violated § 50-6-412, whether or not such violation was committed by the individual or a business entity through which the provider obtained an exemption, then any exemption obtained through such business entity shall be revoked and all exemptions in the provider's name shall be subject to revocation;
(C) A determination by the secretary of state that the construction services provider no longer meets the requirements for an exemption established pursuant to this part; or
(D) A determination by the secretary of state that the construction services provider failed to renew prior to the expiration date of such exemption or the provider failed to pay any fees required to be paid pursuant to this part.
(2) Any notification of a violation made by the department pursuant to subdivision (b)(1)(B) shall include information indicating whether such violation requires a temporary or permanent revocation pursuant to § 50-6-412.
(3) If a provider's exemption is revoked pursuant to this section, the secretary of state shall:
(A) Remove the construction services provider's name from the registry within seven (7) days of receipt of notification from the department or the board, or upon making a determination as provided in subdivision (b)(1)(C) or (b)(1)(D); and
(B) Notify the construction services provider that such provider is required to notify, within twenty-four (24) hours of such revocation, any person or entity for whom the provider is currently providing services that the provider's workers' compensation exemption has been revoked.
(4) If a provider's exemption is revoked pursuant to subdivision (b)(1), the administrative and judicial procedures available to such provider shall be those procedures set out in § 50-6-906.
(c) If a construction services provider's exemption is revoked pursuant to this section, the construction services provider shall be required to carry workers' compensation insurance as provided in § 50-6-902(a); provided, that such construction services provider does not otherwise meet an exemption set out in § 50-6-902(b).
(d) A construction services provider whose exemption is revoked for any reason set out in this part shall be notified of such revocation in writing, and shall not be entitled to a refund of filing fees.
2010 Pub.Acts, c. 1149, § 13, eff. March 1, 2011; 2011 Pub.Acts, c. 422, §§ 6 to 8.
(a) Except as provided in § 50-6-412(h)(2), a construction services provider whose exemption is revoked pursuant to § 50-6-908 may apply to reinstate such exemption in the same manner as provided for in this part for an initial application.
(b) A construction services provider whose exemption is revoked under § 50-6-908(b) may only be granted a reinstatement of exemption:
(1) Upon notification to the secretary of state from the board that such provider's license is no longer revoked or suspended;
(2) Upon notification from the department of labor and workforce development to the secretary of state that the provider qualified for reinstatement pursuant to § 50-6-412(g); and
(3) If the secretary of state determines that the provider meets the requirements for an exemption established pursuant to this part.
(c) Upon verification by the secretary of state that the requirements of subsection (b) are met, the secretary of state shall file the application in accordance with § 50-6-905.
(a) Any action to recover damages for injury, as defined by § 50-6-102, by a construction services provider shall proceed as at common law, and the defendant in the suit may make use of all common law defenses if, at the time of the injury, the construction services provider was:
(1) Listed on the registry as having a workers' compensation exemption and working in the service of a business entity through which the construction services provider obtained such an exemption;
(2) Not covered under a policy of workers' compensation insurance maintained by the person or entity for whom the provider was providing services at the time of such injury; and
(3) Eligible for an exemption pursuant to § 50-6-914(b)(2), if such eligibility requirements apply, at the time of such injury.
(b) Any construction services provider proceeding as at common law pursuant to subsection (a) shall forego the right to sue to establish or reestablish workers' compensation coverage.
2010 Pub.Acts, c. 1149, § 13, eff. March 1, 2011; 2011 Pub.Acts, c. 422, § 9.
(a)(1) The secretary of state shall provide notice on its web site that the registry is for purposes of establishing providers who are exempt from workers' compensation coverage and in no way reflects licensing or certification of any construction services provider.
(2) The board, the department of commerce and insurance and the department of labor and workforce development shall each develop a notice provision to inform the public that any person or entity interested in determining whether a construction services provider is exempt from workers' compensation coverage shall review the secretary of state's web site. Such notice provision shall be prominently displayed on the web sites of the board, the department of commerce and insurance and the department of labor and workforce development.
(b)(1) The secretary of state shall provide notice to the department of labor and workforce development, the board and the department of commerce and insurance when a construction services provider is added to or removed from the registry.
(2) If any construction services provider has a license issued by the board, and such license is revoked or suspended, the board shall immediately notify the secretary of state, in order for the secretary of state to revoke such provider's exemption pursuant to § 50-6-908(b).
(a) The secretary of state may charge the following maximum fees for each of the following:
(1) | The issuance of a construction services provider registration to providers who have not been issued a license by the board | ․․․․․․․․․․$50 | |
(2) | The issuance of a construction services provider workers' compensation exemption | ․․․․․․․․․․$50 | |
(3) | The filing of correction information pursuant to § 50-6-905(c)․․․․․․․․․․․․․․․․ | ․․․․․․․․․․$20 | |
(4) | The filing of change of address information pursuant to § 50-6-905(d)․․․․․․․․․ | ․․․․․․․․․․$20 | |
(5) | The filing of a construction services provider workers' compensation exemption renewal | ․․․․․․․․․․$50 | |
(6) | The filing of a construction services provider registration renewal to providers who have not been issued a license by the board | ․․․․․․․․․․$50 | |
(7) | The filling of a revocation pursuant to § 50-6-908(a)․․․․․․․․․․․․․․․․․․․․․․․․․ | ․․․․․․․․․․$20 | |
(8) | The issuance of a copy of the notice issued pursuant to § 50-6-905(a)(1)․․․․․․ | ․․․․․․․․․․$20 | |
(9) | The issuance of a second or subsequent construction services provider workers' compensation exemption registration |
$20 per registration | |
(10) | The filing of a second or subsequent construction services provider workers' compensation exemption renewal |
$20 per renewal |
(b) In addition to the maximum fees authorized in subsection (a), the secretary of state is authorized to charge an online transaction fee to cover costs associated with processing payments for applications submitted online.
(c) Except as provided in subsections (a) and (b), no other fees shall be charged by the secretary of state to administer this part.
2010 Pub.Acts, c. 1149, § 13, eff. March 1, 2011; 2011 Pub.Acts, c. 422, § 10;2012 Pub.Acts, c. 1030, § 2.
(a) There is created a fund to be known as the “employee misclassification education and enforcement fund.” Any fee collected pursuant to § 50-6-912(a) shall be deposited in the employee misclassification education and enforcement fund. Moneys in the fund shall be invested by the state treasurer in accordance with the provisions of § 9-4-603. The fund shall be administered by the commissioner of labor and workforce development.
(b) All costs of the secretary of state associated with the administration of this part shall be paid by the commissioner of labor and workforce development from the employee misclassification education and enforcement fund. Moneys remaining in the fund after such payment may be expended, subject to appropriation by the general assembly, at the direction of the commissioner of labor and workforce development for the purchase of computer software and hardware designed to identify potential employee misclassification activity, for the hiring of additional employees to investigate potential employee misclassification activity, for education of employers and employees regarding the requirements of this part and in support of the ongoing investigation and prosecution of employee misclassification.
(c) Any amount in the employee misclassification education and enforcement fund at the end of any fiscal year shall not revert to the general fund, but shall remain available for the purposes set forth in subsection (b). Interest accruing on investments and deposits of the employee misclassification education and enforcement fund shall be credited to such account, shall not revert to the general fund, and shall be carried forward into each subsequent fiscal year.
2010 Pub.Acts, c. 1149, § 13, eff. March 1, 2011; 2013 Pub.Acts, c. 424, § 2, eff. July 1, 2013.
(a) Except as provided for in subsection (b), a general contractor, intermediate contractor or subcontractor shall be liable for compensation to any employee injured while in the employ of any of the subcontractors of the general contractor, intermediate contractor or subcontractor and engaged upon the subject matter of the contract to the same extent as the immediate employer.
(b)(1) Notwithstanding subsection (a) and subject to subdivision (b)(2), a general contractor, intermediate contractor or subcontractor shall not be liable for workers' compensation to a construction services provider listed on the registry established pursuant to this part.
(2)(A) No more than three (3) construction services providers performing direct labor on a commercial construction project may be exempt from § 50-6-902(a).
(B) For purposes of subdivision (b)(2)(A), the three (3) construction services providers shall be selected by the general contractor. The limit of three (3) set out in subdivision (b)(2)(A) shall be three (3) individuals listed on the registry as having a workers' compensation exemption and working in the service of a business entity through which the construction services provider obtained such an exemption.
(C) If a general contractor allows a construction services provider to provide services on a commercial construction project while such provider is utilizing an exemption pursuant to this part, the general contractor shall:
(i) Notify each such construction services provider in writing that the provider has been chosen by the general contractor as one of the three (3) construction services providers performing direct labor who may be exempt from § 50-6-902(a); and
(ii) Maintain a record identifying each such construction services provider. The general contractor shall make the record maintained pursuant to this subdivision (b)(2)(C)(ii) available for inspection upon request by the general contractor's insurance provider, the department, and the department of commerce and insurance.
(c) Any general contractor, intermediate contractor or subcontractor who pays compensation under subsection (a) may recover the amount paid from any person or entity who, independently of this section, would have been liable to pay compensation to the injured employee, or from any subcontractor.
(d) Every claim for compensation under this section shall be presented first to and instituted against the immediate employer, but the proceedings shall not constitute a waiver of the employee's rights to recover compensation under this chapter from the general contractor, intermediate contractor or subcontractor; provided, that the collection of full compensation from one (1) employer shall bar recovery by the employee against any others, and the employee shall not collect from all employers a total compensation in excess of the amount for which any of the contractors is liable.
(e) This section applies only in cases where the injury occurred on, in, or about the premises on which the general contractor has undertaken to execute work or that are otherwise under the general contractor's control or management.
2010 Pub.Acts, c. 1149, § 13, eff. March 1, 2011; 2011 Pub.Acts, c. 422, § 11.
Notwithstanding any law to the contrary, records maintained by the secretary of state relative to the construction services provider registration and to the workers' compensation exemption registration, other than records displayed on the registry established pursuant to this part, shall not constitute a public record as defined in § 10-7-503 and shall not be open for public inspection.
2010 Pub.Acts, c. 1149, § 13, eff. March 1, 2011.
Nothing in this part shall be construed as preventing or prohibiting any contractor from requiring a certificate of workers' compensation insurance from any of its subcontractors or any construction services providers providing services to such contractor.
2010 Pub.Acts, c. 1149, § 13, eff. March 1, 2011.
A policy of workers' compensation insurance issued through the assigned risk plan as provided in § 56-5-314 that insures a person engaged in the construction industry shall be governed by this part, and a state agency shall not impose requirements relative to this part on such a policy other than those imposed by this part.
2010 Pub.Acts, c. 1149, § 13, eff. March 1, 2011.
Beginning with fiscal year 2012-2013, and each fiscal year thereafter, the employee misclassification advisory task force created pursuant to former § 50-6-919 shall make recommendations to the general assembly regarding programs and services to be funded from the employee misclassification education and enforcement fund created pursuant to § 50-6-913.
2010 Pub.Acts, c. 1149, § 13, eff. March 1, 2011.
(a) It is an offense for any employer to knowingly:
(1) Coerce or attempt to coerce, as a precondition to employment or otherwise, a job applicant to obtain an exemption pursuant to this part; or
(2) Coerce, attempt to coerce, discharge or take any adverse employment action against an employee because the employee has failed to obtain an exemption pursuant to this part.
(b) A violation of subsection (a) is a Class A misdemeanor.
The construction services provider workers' compensation exemption for any provider not exempt prior to March 1, 2011, who has been placed on the workers' compensation exemption registry by the secretary of state shall be in effect beginning at 12:00 a.m. on March 1, 2011, regardless of such provider's date of application; provided, that any person exempt under provisions of law in effect prior to March 1, 2011, shall maintain such exemption until March 1, 2011.
2010 Pub.Acts, c. 1149, § 19, eff. June 30, 2010; 2011 Pub.Acts, c. 422, § 12.
Cite this article: FindLaw.com - Tennessee Code Title 50. Employer and Employee § T. 50, C. 6 App. - last updated January 02, 2024 | https://codes.findlaw.com/tn/title-50-employer-and-employee/tn-code-sect-t-50-c-6-app/
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