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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.

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