The Thomas Law Firm Blog | Murfreesboro TN Personal Injury

Information about Truck and Tractor Trailer Wrecks in Tennessee

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High Traffic roads for Large Trucks in Tennessee

Tennessee ranks sixth in the nation and first in the Southeast for cargo-ton-miles and value commodities carried by a truck (according to the Tennessee Trucking Association and the National Highway Transportation Safety Administration). In addition approximately 80% of all manufactured freight transported in Tennessee is by Truck. This means that Tennessee roadways are always filled with tractor trailers and other large trucks.

Truck accidents don’t happen just on Interstates

Tennessee has many interstates across the state and many trucks pass through them on their way to other destinations. Avoiding major cities does not mean you are safe from wrecks with tractor trailers.Sixty-eight percent of all fatal truck accidents happened in rural areas so being away from a big city doesn’t mean it won’t happen and you need to always be cautious driving no matter where you are. Remember to avoid truck blind spots, observe a truck’s turn signal, and use correct passing procedures to help avoid these accidents.

Many Reasons for a Large Truck Wreck

There can be many causes to an accident.One of the most common is truck driver fatigue due to the rigorous schedules they work.However, even if the driver is not at fault there could still be reasons for the accident. One of which could be vehicle condition.It is up to the truck driver and trucking companies to have well maintained trucks. So even if it appears the person is not at fault there could still be an underlying vehicle issue that lead to the accident.

Large Truck Accidents are Different from Car to Car Wrecks

A vehicle wreck where a large truck is involved can be different than an accident with another car. There are several more factors at play, including: insurance requirements, driver training, and many federal and state laws and regulations.Truck drivers and trucking companies are represented by large insurance agencies You will need legal representation for yourself in these cases so that your lawyer can handle the insurance companies and laws and you can focus on recovery.

Accidents with Large Trucks can cost You a lot of Money

It is estimated that around 500,000 trucking accident occur every year in the United states. Out of these around 5,000 accidents result in fatalities and many more involve injuries. However, even if no serious injury was incurred you could be looking at a huge financial impact.The average cost of a commercial truck accident is about $59,150. So even if you are fortunate enough to be uninjured in your accident you still could be looking at a serious financial loss. You can bet that the truck company will have their insurance company fighting to pay as little of that as possible. It is important to have skilled representation anytime you are involved in an accident (especially when it involves a commercial truck).

Personal Injury Law – Frequently Asked Questions

Personal injury refers to civil cases in which a party (The Plaintiff) sues another individual or company (The Defendant) for personal injury, property damage, lost wages, pain and suffering, or any other kind of loss or injury. To recover compensation, a plaintiff must prove that there was an act or failure to act on the part of the Defendant which caused some damage to the Plaintiff.

This area of law includes automobile accidents, products liability, professional negligence and premises liability cases.

A person who suffers injury as the result of someone else’s negligence in the State of Tennessee typically has up to one year from the date of the injury to file a lawsuit. In most cases, failure to file suit within that one year will prevent the Plaintiff from making any recovery.

Understanding Automobile Insurance Gaps | Legal Advice

Most people believe that if they get “full coverage” they are covered for anything an automobile accident throws at them. Unfortunately, this is not the case. Very few insurance agents take the time to truly explain how liability insurance interacts with uninsured/underinsured motorist coverage and medical payments coverage. Often people do not understand what they are purchasing, they are mostly interested in the number behind the $. If you understand how the auto insurance coverages work, you can be sure you are protected and know what to expect if you are ever involved in a motor vehicle collision.

Liability Insurance

The liability coverage is what is required by the State, and the current minimum coverage is $25,000.00 per person/$50,000 per accident. But what does that mean and who does it cover? If another driver smashes into your vehicle with you and 1 passenger in it, then both you and your passenger may receive up to $25,000 from the other driver’s automobile insurance. If there are three people in your car, then the three of you will be fighting to divide up $50,000 so long as none of you get more than $25,000.

Uninsured/Underinsured Motorist (UM/UIM) Coverage

So what happens when your medical expenses alone exceed the $25,000 minimum limits of the other driver? Or worse yet, what if they did not have coverage at all? Was the collision a hit and run? You have “full coverage” on your car, so why will your insurance only pay to fix your car? If you are asking these questions, chances are, you may not like the answers.

Full coverage insurance is often nothing more than liability and collision insurance for damages to your vehicle. You will need to pay your deductible before your insurance company will pay a dime. Your insurance does not automatically cover your injuries if the other driver does not have insurance or does not have enough insurance. You must have UM/UIM coverage with limits higher than the other driver’s limits if you want your insurance company to pay. This is an optional coverage many people decline to purchase. This is essentially relying on your fellow drivers to have all complied with the law, and gambling on any injury you may receive being relatively minor.

Medical Payments Coverage

You may think that since you have health insurance through your employer, a government program, or a private policy that you are covered no matter what causes your need for medical attention. If you are involved in a motor vehicle collision you will quickly discover how much this assumption will cost you.

Most medical facilities refuse to bill your health insurance for injuries due to a motor vehicle collision (and certain other circumstances). After the initial emergency room treatment, many individuals have difficulty obtaining medical treatment because the medical providers refuse to see someone under their health insurance for motor vehicle collision injuries. The other driver’s insurance is not going to pay anything until your medical treatment is concluded so they can write one check. This is where having medical payments coverage comes into play.

If you have medical payments coverage, it will cover your medicals until it has been exhausted. Your ambulance bill, ER bill, radiology bills, emergency physician bills, family physician, specialist, therapy, etc. can all bill your insurance company under this medical payments coverage and be paid 100%. Sadly, most people have $1,000 or $5,000 in medical payments coverage. This is exhausted just from the emergency treatment, so then they are back in the same boat.

Getting counsel early in the process will help make sure you can make the most of your medical payments coverage. Not only can that, but having a lawyer can help you force your insurance company to pay the bills. There are deadlines for submitting medicals to health insurance companies and your auto insurance may have subrogation on the final settlement that will need to be addressed before you can settle the claim.

Interaction of Coverages

Most serious collision injuries will involve some or all of the above insurance coverages. When there is insurance coverage available, the medical payments coverage will kick in first. If you have this on your auto policy, they will help you pay for medical treatment right away. Once that coverage is exhausted, your health insurance should kick in and pay for the remainder of treatment (minus your deductible and copay).

Once the treatment is completed, the other driver’s insurance should pay for the injuries up to the limits of their policy. When they do, your health insurance and your medical payments coverage will want to be paid back. After the other driver has tendered the full amount of their policy limits, the UM/UIM coverage will kick in to pay the remainder of your damages.

Insurance companies are in business to make money. The do this by delaying payment or denying payment on legitimate claims, offering less than a case is worth, and getting people to settle before their medical treatment is finished for less than the case is worth. Too many people are trying to save money by trimming their insurance to the State minimums or canceling their insurance altogether. This leaves them unprotected if they are injured, and leaves anyone they injure without adequate compensation for their injuries. Knowing how these policies interact will help injured persons understand what options they have when purchasing coverage for their families and when they are the injured party. Skilled and knowledgeable counsel can assist you in getting the most out of your claim and your insurance.

Top Ten Reasons You Need An Attorney After A Car Accident

If someone injured you through their negligence in driving a vehicle, then you have rights under the law. You want to make sure to protect those rights after a car accident so you don’t end up paying- financially and personally- for someone else’s careless driving behavior. Read on for the top 10 reasons you need an attorney to protect your rights after a car accident.

1. You have only a limited time to sue: In most states, the statute of limitations for filing a car accident claim is between one and two years. If you don’t sue within that time, you give up your right to sue forever.

2. You may need to comply with certain rules in order to sue You may need to file a police report or file notice within a given period of time. Your individual state may have additional requirements as well. An attorney who is experienced in handling car accident injuries in your area will be familiar with the laws and can help you make sure you don’t do anything that jeopardizes your right to sue the party responsible for your injury.

3. Your insurance company may have a different agenda: Most insurance companies aim to protect their insureds and to compensate them for damages. However, insurance companies also aim to keep costs down and reduce their overhead. Since your agenda and your insurance companies agenda may not perfectly align, hiring an attorney can be the best way to insure you have an advocate for your interests.

4. You may not fully understand all of your potential damages: There are a slew of potential damages available to people who are injured in a car accident. In addition to medical bills, you may be able to recover for lost wages, pain and suffering and emotional distress. Your family members may even be able to recover for the loss of your companionship if you have become incapacitated. If you don’t hire an attorney, you may not be aware of all of your potential legal rights to recovery.

5. Proving liability can be complex Even with witnesses and a police report saying the other party is at fault, proving that he was so negligent that he breached a duty of care to you can be difficult. Since there are many elements that go into winning a personal injury lawsuit, you will need to hire an attorney who understands the law and who can provide references to cases, citations and other sources of law that support your position.

6. The laws differ from state to state: Auto insurance and auto accident rules are decided by each individual jurisdiction. For example, there are 12 “no fault” states in the US in which you cannot sue after a car accident except in special circumstances. Likewise, in some states, you can sue even if you were partially at fault for the accident (called comparative negligence states) while in others, if you contributed to causing the accident you can’t sue (called contributory negligence.) An attorney in your area can help explain all the nuances of the law within your jurisdiction to you, so you will fully understand all of your legal rights.

7. You need to understand settlement options: Most cases settle out of court, which means the defendant or his insurance company is likely to make you an offer. Your attorney can help you understand the implications of accepting this offer, since once you accept, you give up your right to sue forever. He can also help you to evaluate whether settling is the best option in your case or not.

8. Filing a lawsuit requires adhering to complex rules If you decide to sue, you will have to file the appropriate papers in the court. This is not as simple as going to the court house and announcing your intent to sue. A number of complex rules exist on everything from the font size of the brief to how legal precedent is cited and what evidence is admissible. You will need a lawyer to guide you through the complicated process of filing suit.

9. Proving your case can be even more complex- Just as filing your case is complex, proving your case is even more so. You may be permitted to “discover’ certain information from the other side, and you may be limited in the types of witnesses and evidence you present. There are even restrictions on the kind of questions and phrasing of questions you ask in court. Furthermore, extensive legal research often needs to be done to convince the court or jury to side with you. As such, it is very difficult to prove personal injury liability on your own.

10. If you don’t hire an attorney, you could be faced with financial loss- If you don’t sue in time, if you don’t sue for the right damages or sue the right defendants, and if you lose your case as a result of improperly presenting your information, you will be barred from ever suing again. This means you will have used up your only chance for recovery and you will be stuck with all the costs and bills as a result of the accident that someone else carelessly caused.

Changes to Workers Compensation Law (Part Five)

(11) Child support issues

If you have a client who has back child support which is the subject of a judgment, you have stepped into a legal minefield by representing that client. There is an Attorney General’s opinion which is attached hereto as Appendix “C” which sets out the general rules. If there has been a contract entered into with an attorney, which provides for attorney’s fees and costs, then the attorney may assert a lien which is superior to the child support department. If there has been a pre-contract seizure of the asset directly with the insurance company then you are at the mercy of the child support division for fees or expenses. The DCS does not have to agree to allow an attorney to collect any fees or recover any costs out of the work comp settlement or judgment.

I suggest to you that this is a flawed statute and an unintended consequence of a law that was passed to benefit children. There is a complete disincentive with no fee or reimbursement of expenses to do anything except withdraw. The client gets $0. Child support gets $0. This is a lose – lose situation.

There is no real solution to this if the attorney general with whom you are dealing takes an unrealistic position. I mention this problem because you need to be aware that as part of the initial file intake, you should ask about any child support liens, arrearages, or anything that could possibly defeat your attorney’s fee and claim for costs. Be sure that your written contract is in front of any type of seizure notification to the insurance company which should then permit your attorney fees and costs and advise your client about all of the unpleasant ramifications of being behind on child support which includes not receiving any of the proceeds although the proceeds will be applied to reduce the past due arrearage. If the arrearage is paid in full, the excess would be paid to the client.

(12) Appeal and Enforcement of Medical Benefits under T.C.A. 50-6-204

As you know, the attorney can obtain attorney’s fees and full costs for enforcement of a court order or Department of Labor order under T.C.A. 50-6-204(b)(2). However, under what circumstances do you have to have a Department of Labor RFA before you can go into court? And can you go to court at all?

Under T.C.A. 50-6-204(g)(2)(A) whether there has been a judgment or decree entered by a court or an approval by the Department of Labor either may request the assistance of a workers’ compensation specialist to determine whether medical care and treatment will be ordered under the RFA process.

(13) Subparagraph 50-6-204(g)(2)(B)

Under T.C.A. 50-6-204(g)(2)(B) a workers’ compensation specialist may also order attorney’s fees and reasonable costs. Under 50-6-204(g)(2)(D)(i) if there has been a request for assistance pursuant to a court judgment or a decree following a trial, the appeal of the specialist order may be to the original court that issued the judgment or decree. The order of the specialist is attached to pleadings but then the original court reviews the order “de novo”.

(ii) if the request for assistance involved a request for medical care under a settlement in court or with the Department of Labor the specialist order may be appealed through the administrative review process pursuant to T.C.A. 50-6-238(b) which is in Chancery Court in Davidson County under the “substantial evidence” test which is much more difficult than a “de novo” review.

The way to avoid taking depositions and then not really having a forum to hear the case (i.e. a trial) is to simply file with a court of competent jurisdiction to enforce the medicals and bypass the Department of Labor. It is not mandatory to go through a RFA in the Department of Labor for medical enforcement as indicated by the word “may” as set out in T.C.A. 50-6-204(g)(2)(A). That statute is attached for reference as Appendix “D”.

(14) Changes to requests for admissions

The rules pertaining to requests for admissions have changed in that requests for admissions now include expert opinions. If you have medical bills generated by five different treating physicians and you are attempting to prove the medical bills in a contested case where the medical bills were not paid, you can ask that the reasonableness and necessity of the medical bills be established through requests for admissions. I suggest separate requests for admissions for each of the bills. You can also request authenticity of business records and/or medical charts through using requests for admissions which will eliminate a lot of subpoenas. In the instance of medical expenses, you can eliminate having to take multiple depositions of surgeons in perhaps two or three separate hospitals to prove medical expenses. Many times you can have a record review to have someone review expenses to comment upon reasonableness and necessity. Sometimes this simply does not work depending upon the complexities of the case. The Requests for Admissions are now the vehicle to take care of that expensive and time consuming problem. It will streamline your proof and save your client thousands of dollarGood luck and best wishes in the upcoming year. Keep the faith. Keep litigating those cases which need to interpret the new laws. Look for novel approaches. If something obviously is wrong with a statute, have it declared void in Court or call your legislator.

Changes to Workers Compensation Law (Part Four)

(10) Land mines with Department of Labor – Due Process

The Department of Labor within the last 3 months has become increasingly pro active in performing independent ex parte investigations of plaintiffs. Some of these investigations are also directed towards the defendants. Most of the investigations I see are directed towards plaintiffs, because I represent plaintiffs.

There has been a tendency to not ask the attorney’s permission but to make calls directly to the client and even request and receive documentation from the client without going through the attorney or notifying the attorney that this is occurring. Documents furnished by the client are not furnished to plaintiff’s attorney.

Another source of information which is not revealed to plaintiffs’ attorneys in any type of uniform way which I have found is information furnished by the other side. Therefore, I find myself in a situation of receiving an opinion from the Department of Labor which contains facts and which references documents I have never heard of, seen, been furnished copies of, or had a chance to rebut. There are also typically hearsay statements which I have never heard of before, had a chance to investigate, or rebut. This raises procedural due process questions under the State and Federal Constitutions.

Chancellor Carol McCoy in Randstad North America, L.P., vs. Tennessee Department of Labor and Workforce Development and Erica Doud, Davidson Chancery No. 09-716-II has declared certain temporary benefit rulings unconstitutional. Portions of the opinion, now on appeal, are attached as Appendix “A”. This was based upon procedural due process concerns.

There is another lawsuit pending in the Chancery Court of Davidson County at Nashville, TN which is a complaint for Declaratory Relief and Judgment filed by Andy Veazey, a defense attorney. This is the case of Royale Construction, Inc. and Westfield Insurance Company vs. Karla Davis, Commissioner of The Tennessee Department of Labor and Workforce Development, et al, Davidson County Chancery Case No. 11-627-II. (Portions of the Complaint are attached as Appendix “B” The 17 page complaint filed by Mr. Veazey claims that T.C.A. 50-6-238 is constitutionally invalid and violates due process. In paragraph 58 on page 15 (attached) there is an allegation that the specialist to adjudicated claims based upon information such as is appropriate without tying it into a defined legal standard. The complaint in paragraph 59 at page 15 (attached) also alleges that T.C.A. 50-6-238 disregards the laws of evidence.

Procedural due process includes safeguards such as (a) the right to confront, (b) the right to cross examine, and (c) the right to meaningfully be heard. Where hearsay statements and other information which is defined by no known legal standard and many times information which is not even made known to both sides of the claim is being used as the basis of a decision, this makes it virtually impossible to safeguard your client’s constitutional rights under traditional notions of due process.

The net effect of constitutional challenges may be to declare the entire temporary benefit process, which the Department of Labor currently enforces, unconstitutional. It is difficult to deal with the Department of Labor based upon unknown evidence. Ex parte communications, not revealed, lead to a secretive process which is impossible to rebut.

Without establishing hearing rooms, hearing officers, and in effect duplicating the court system (costing hundreds of millions of dollars) there is an argument that ex parte communications which form the foundations of the opinions which are being reached day in and day out, are by their very nature unconstitutional. Thus, such opinions create a violation of procedural due process which has the effect of depriving litigants of property rights.

There has to be a better way to do this. Perhaps it is better to go back to the McCall v. National Health Corp., 100 SW 3d 209 Tenn. (2006) and Shelton v. Ads Environmental Services, 100 SW 3d 214 (2006) type hearings where one could file in Court for a start up of benefits and go through the usual court process if there is a denial of benefits by the employer or its insurer. This would require the taking of proof and a full blown hearing in front of a Judge, but the rules of evidence, and civil procedure would apply. I invite your thoughts. There will be a Supreme Court opinion on the Chancery case from Chancellor McCoy’s court in the near future.

Changes to Workers Compensation Law (Part Three)

(6) Timing

Changes defining cumulative trauma and the definition of injury (set out above) as well as the other changes in Public Chapter 416 will take effect on June 6, 2011. The changes to Overstreet take effect also on June 6, 2011. Intoxication changes July 1, 2011 (see below) Construction changes October 1, 2011 (see below). Unemployment compensation changes July 1, 2011 (see below).

(7) Intoxication/drug use defense

The new law T.C.A. § 50-6-110(c)(1) increases the standard for the employee rebutting the presumption that a work injury was caused by drug or alcohol use. The standard has now shifted from the “preponderance of the evidence” to “clear and convincing evidence” where there has been a drug free workplace.

In addition to the drug free workplace law which is very detailed and which an employer may or may not have in effect, the presumption also has a second requirement. The second requirement is that there be a blood alcohol concentration level equal to or greater than .08 for non safety sensitive positions or .04 for safety sensitive positions or a confirmation of certain types of drugs. The new code sets this out in T.C.A. §50-6-110 and takes effect July 1, 2011.

(8) Construction service providers exemptions

Public Chapter 422 takes effect on October 1, 2011 and deals with the ability of officers of corporations (up to 5 may be exempt-previously 3), or limited liability companies (30% ownership dropped to 20% of the company), or limited or general partnerships (30% ownership dropped to 20%), or family owned businesses (up from 3 to 5 may be exempt) to exempt themselves from coverage. This change in policy will affect multiple statutes within T.C.A. § 5-6-101 et. seq. and 901 et. seq.

(9) Unemployment compensation

Unemployment compensation takes out the period of temporary total disability from the calculation of the base period which will increase the gross pay calculation to help the people arrive at a more reasonable unemployment compensation rate. The changes in T.C.A. § 50-6-207(1)(C) are effective July 1, 2011.

Changes to Workers Compensation Law in TN (part two)

(3) Mental Injuries, Disease, Cumulative Trauma and “Primarily”

Injury expressly includes a mental injury arising out of the course of employment. It does not include (a) a disease except when the disease arises out of the course and scope of employment or (b) cumulative trauma conditions unless these arose “primarily” out of the course and scope of employment.

What has changed? The rule has always been that an injury has to arise out of the course and scope of employment. Is the rule that cumulative trauma now cannot be merely aggravated or anatomically advanced but has to also be “primarily” out of the course and scope of employment? Does this mean more than 50% advanced rather than a slight aggravation? How does the “take them as you find them” rule apply? If the injury was 2% of the overall condition but the added 2% precipitated the disabling condition is this “primary”? How does this work with injuries fully manifesting later such as Oliver v. State, 762 S.W.2d 562 (Tenn. 1988)? Can we now hold in former employers under the “fully manifested” rule if 85% of the injury occurred after employment ended?

At a first reading of this, it appears that the disease part of the statute does not change much whereas the cumulative trauma portion of the statute may impose a higher standard of being “primarily” out of the course and scope of employment rather than an advancement or aggravation which is some of the language from the earlier cases. If it “primarily” caused the disabling event but is less than 50% of the overall impairment are you in or out? This will be litigated. A plaintiff will argue that if the event took the person out of work, it was primary. A defendant will probably argue to the contrary.

Under cumulative trauma conditions which include hearing loss, carpal tunnel, but also repetitive overuse syndromes for elbows, shoulders, knees, or any other cumulative trauma, the employer’s physician from the panel is now presumed correct unless rebutted by a preponderance of the evidence.

I am not sure what has changed with this language except that the cumulative trauma now has to be “primarily” out of the course and scope of employment which needs to be interwoven into the deposition questions which are asked of the treating physician and/or IME physician. What that really means is anyone’s guess until appellate decisions give a better definition.

(4) Future medical expenses

The rule used to be that we could settle future medicals. This permitted settlement of some of the more questionable cases with high medical exposure. Such cases would sometimes be resolved because there was additional latitude to close medicals. These settlements were eliminated except for the nominal value “doubtful and disputed” basis settlements which have been the rule for the last few years. That has now changed so that again future medical expenses can be closed except in cases of permanent and total disability. This is under T.C.A. § 50-6-206(b). But, watch out for TennCare, Medicaid, Medicare, VA, ERISA, CHAMPUS or other statutory liens including hospital liens. If you close medicals do not create exposure for yourself or your client.

(5) Communications with the employee’s treating physician

Overstreet v. TRW Commercial Steering Division, 256 S.W. 3d 626 (Tenn. 2008) prevented the employer from ex parte communication with the employee’s treating physician without first obtaining a waiver of confidentiality from the employee. This changed the law substantially. Previously there had been open communication.

The rule was previously changed to the pre Overstreet rule effective July 1, 2009 in T.C.A. § 50-6-204(a)(2)(A) which permitted the employer to communicate orally or in writing with the treating physician. There was a provision that the employee and his attorney should be given a prior written notice of the contact and copies of the communications. Plaintiff and counsel should be provided with copies of written communications and/or summaries of any oral communications. So, at the end of the day Overstreet was not completely overruled. The prohibition against ex parte contact was changed to permit ex parte communication. But, there was a reporting requirement back to the employee and the employee’s attorney. This has now been changed in 2011 on the basis that it is too burdensome. The reporting requirement now imposes only the requirement that contact information be furnished no later than 10 days before the day of the physician’s deposition. It fully allows ex parte communications which is the pre Overstreet rule. See Public Chapter 416.

Changes to Workers Compensation Law (Part One)

The changes to the 2011 law have brought a more conservative definition to several different aspects of the workers’ compensation law which ultimately may make it more difficult for an injured employee to recover. The broad changes are outlined below and will be discussed.

(1) The Definition of the Injury

The new definition of injury as set forth in Tenn. Code Ann. § 50-6-102(12) defines the terms of personal injury to arise out of employment as follows:

(a) The injury is “accidental” being caused by an event that is identifiable by time and place occurrence although it can be more than one incident;

Someone, somewhere will take the position that the event will have to be identified to the hour and minute. But, look at wording “set of incidents” which still leaves the door open to gradual injuries. i.e. unloaded from 9:00 a.m. – 10:00 a.m. 25 pound boxes from delivery truck 10-28-11. Does this broaden the rule of recovery for mental injuries which under <span style=”text-decoration: underline;”>Jose</span> v. <span style=”text-decoration: underline;”>Equifax</span>, 556 SW 2d 82 (1977), could not be gradual? i.e. set or series of incidents. A plaintiff would want to argue that it does broaden recovery for mental injuries.

(2) Causation Presumed Correct Standard

(b) The authorized treating physician’s opinion as to causation is presumed correct unless rebutted by a preponderance of the evidence. T.C.A. §50-6-102(12)(A)

Certainly, this is a huge contrast from the prior law which had cases stating all sorts of different propositions. Essentially, if the appellant court wanted to rule in favor of the party with a favorable IME it would quote case law saying that the opinions of a treating physician need not necessarily be accepted. If the appellant court wished to rule in favor of the treating physician’s opinion, there were some opinions that the treating physician’s opinion should be favored. Usually there would be some statement as to why this was true in a particular case. The underpinning of this line of opinions was usually the numbers of visits and treatment rendered over a lengthy period of time rather than a single visit to an independent medical evaluation. All of this appears to be changed as to causation.

Note the earlier MIR change about the presumption as to the impairment rating. This makes the MIR physician presumed correct as to the impairment rating absent clear and convincing evidence.

The new environment may more difficult in terms of causation because the treating physician is presumed correct. This undercuts the IME process. However, if one looks at the language which follows in the rest of the statute, the presumption can be rebutted by a “preponderance of the evidence”. This eliminates that problem. Thus, another view of the change is that not much has really changed. The preponderance of the evidence test has always been law. If the treating physician’s opinion on causation is presumed correct but then can be overcome by a preponderance of the evidence so what! This means that the plaintiff has the burden of proof. This is old news. The plaintiff has always had the burden of proof.

Some will argue that this statute seems to force the trial court to pick a side. The judges may no longer be able to blend ratings or come up with a middle ground. The presumption and necessity to overcome the treating physician probably means that the judges will have to make specific findings as to which rating they believe is appropriate. However, the judges are not bound by the medical testimony and may arrive at their own findings taking judicial notice of the AMA Guide provisions. This may lead to significantly more appeals based upon the weight of the evidence. The issue has several moving parts which include (a) a liberal construction of the statutes in favor of the injured worker, (b) with a presumption of correctness for the authorized treating physician, (c) the trial court’s discretion on credibility of witnesses, (d) and using a preponderance of the evidence test all of which will likely be litigated heavily over the next decade.

How this will play out will be determined by appellant decisions defining what these terms mean. I see that there is room for argument in several directions. (a) that the presumption creates some higher burden of proof than otherwise existed, (b) nothing has changed because the presumption can be rebutted by a preponderance of the evidence which was the old burden of proof which plaintiffs have always had, and (c) you cannot average impairments (unless the preponderance of the evidence test indicates you should) and the judge makes an independent finding as to impairment, in which case you can. Are you confused yet? This will be litigated.

Probate Law and Information

Probate Basics

When a loved one passes, the family has many legal decisions to make concerning the property and debts of the deceased. Unfortunately, the legal process does not give a family much time to grieve for their loss before deadlines start approaching. And creditors are less than caring and understanding in these situations. There are many things that you should be aware of when dealing with a love ones estate.

Testate vs. Intestate

Did the deceased make a Will? If so, then the Will must be admitted to the Court to dispose of the deceased belongings. If there is not a Will, then the belongings will be handled according to a set of statutes set out by the Tennessee Legislature. In essence, there is no such thing as someone passing away without knowing where there property is going to go. If the person had a Will, you will need to file it with the Court. How quickly you do this determines the procedures that will follow.

Opening an Estate

Anyone who would inherit from the deceased under Tennessee Law may file a petition to open an estate. These petitions need to be filed in the county where the deceased lived at the time of their death and anyone who would inherit something under Tennessee Law must be given notice of the petition in case they want to dispute any part of the process. Depending on when the estate is opened, you may have to publish notice to creditors in the newspaper so that people who may have been owed money by the deceased are given notice. If there is a Will then you petition the court to admit the Will to probate. The court will issue a Letter of Administration which allows the person designated as the representative/administrator/executor to carry out certain tasks on behalf of the estate.

After the Estate is Opened

There are many forms that need to be filled out to determine if the State is owed any taxes, if TennCare or Medicare are owed any funds, and even possible Federal taxes. If there are any unpaid funeral expenses or other creditors, they will file a claim against the estate and notify the Court how much they are owed. The representative/administrator/ executor must send a notice to all of the creditors they know about and tell them that the person is diseased and an estate has been opened. If the creditor does not file a claim, then they are not entitled to be paid. All of this process takes time and can involve multiple court hearings to contest certain claims against the estate.

Closing the Estate

Once all of the creditors have been identified, all of the property and assets have been identified, everyone having a right to inherit under Tennessee Law has had a chance to dispute the process, and all of the appropriate tax and TennCare forms have been filed, the estate can be closed. To do this, everyone must acknowledge that they received what they were supposed to get from the estate. If they cannot or will not do so, then a complete accounting of the assets must be filed with the Court. Once all of this is completed, the clerk’s office will send a bill for the court costs and the matter will be closed.

Probate matters can be long and difficult processes with many details that prevent matters from concluding. Even if all of the heirs are in agreement and the estate is very small, the paperwork and due process requirements can be overwhelming. It is very difficult for a family to grieve their loss while dealing with legal issues. Our firm is happy to help during these difficult times. We make every effort to work efficiently, promptly, and to explain the processes to our clients in clear and plain language. Having an attorney can help the family focus on the future without the worry and stress of navigating the legal system.

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