TN WORKERS’ COMPENSATION REFORM ABBIE HUDGENS, ADMINISTRATOR JEFF FRANCIS, ASSISTANT ADMINISTRATOR...
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Transcript of TN WORKERS’ COMPENSATION REFORM ABBIE HUDGENS, ADMINISTRATOR JEFF FRANCIS, ASSISTANT ADMINISTRATOR...
TN WORKERS’ COMPENSATION REFORM
ABBIE HUDGENS, ADMINISTRATORJEFF FRANCIS, ASSISTANT ADMINISTRATOR
LANDON LACKEY, BENEFIT REVIEW DIRECTORJOSH BAKER, ADMINISTRATIVE ATTORNEY
•11
WHY REFORM? WORKPLACE INJURIES ARE A SERIOUS MATTER Cost to employees
May jeopardize their position May leave them with impairments May hurt them financially
• May not be able to support families Cost to employers
Money, disruption of operations and loss of productivity. In FY 2011-12:• 60,541 Medical-Only Claims• 40,360 Lost Time Claims
•22
WHY REFORM? Complaints about WC costs in TN
• Higher than surrounding states• Discourages new jobs from coming
to TN Some TN firms expand to other
states instead of in TN Increased interest in “opting out” Perception that process is too
lengthy and complicated Perceived incentives to stay off
from work
•33
WHY REFORM?
Concerns about court system
• Too litigious• Only TN and AL use trial courts• Inconsistency in court rulings
“Race to the courthouse”
• Timeliness; it can take years for a claim to move through the court
GOVERNOR LISTENED, APPOINTED
“WORKING GROUP” AND ASKED,
How Can the System
Be Improved?
•55
SIXTEEN MONTHS LATER
PUBLIC CHAPTER 289 AN ACT TO REFORM
TENNESSEE’S WORKERS’ COMPENSATION
SYSTEM WAS SIGNEDFOR DATES OF INJURY ON/AFTER JULY 1, 2014
•66
MAJOR CHANGES IN THE REFORM
Definition of Injury
Change in Construction of Law Move from Chancery and Circuit Courts to Workers’ Compensation Court in DWC
Change in Medical Provider Panels
Change in Physician Communications
MAJOR CHANGES IN LEGISLATIONEnhanced Mediation
Introduction of Treatment Guidelines
Change in Temporary Total Disability BenefitChange in determination of permanent partial disability benefits
New Penalties
MAJOR CHANGES IN THE REFORM Change in Administrative Structure DWC autonomous unit of DOL
• Court of Workers’ Compensation Claims• Board of Workers’ Compensation Appeals• Ombudsman Program/Enhanced Mediation• Continuation of Existing Programs
New Reporting Requirement July 1,2015 Status, Challenges, and Opportunities
New Sunset June 30, 2018
EXPECTED IMPACT OF REFORM
On Employees: Process that is easier
to understand
Emphasis on resolving disputes
Faster access to court
Quicker Medical Treatment
Quicker return to pre-injury employment
On Employers: Fairer, more
predictable environment
Quicker, simpler resolution of claims
Less concern about venue
Lower administrative costs
More conducive to bringing jobs to TN
DEFINITION OF INJURY
Currently, there is a “could be” standard when it is supported by lay testimony
New Law: Injury is compensable if it arose “primarily in the course and scope of work” when all other possible causes are considered
• Primarily had applied to gradual injuries since 6/6/11.
MEANING OF “PRIMARILY”
An injury arises primarily out of the employment if the employee can show that it “contributed more than fifty percent (50%) in causing the injury, considering all causes.”
NEW MEDICAL PROVIDER PANEL PROCESS
PC 289 simplifies the process by requiring only one panel. Three or more independent physicians,
specialists, chiropractors, or practice groups (or any combination thereof)
Initial Treating physician may refer injured worker to a specialist Employer has 3 business days after
notification of referral is received to offer a panel or referral stands.
PHYSICIAN COMMUNICATIONS
Now: Legislative requirement for a signed waiver form from injured worker before ER could speak to medical provider. (Response to Overstreet case)
New: Employer is allowed to communicate with treating physician (orally or in writing), only about the treatment for the workers’ compensation injury.
NEW PROVIDER PANEL PROCESS Providers must be willing to treat the injured worker. If not, ER must provide additional
choices. Maintains the “community” rule, but allows a 100-mile radius if not available in the community. EE still gets travel reimbursement if
outside 15-mile radius NEW—Division can enforce a penalty for improper panels
NEW MEDICAL TREATMENT GUIDELINES--TO BE ADOPTED BY 2016 Guidelines for the diagnosis and treatment commonly occurring workers’ compensation injuries
Intended to reduce disputes, improve quality and timeliness of medical treatment
In consultation with medical advisory committee
MEDICAL TREATMENT GUIDELINES Medical Advisory Committee
Physicians with experience in WC with representatives of insurance, employers, and employees
Geographically diverse Any treatment that follows guidelines presumed to be medically necessary Rebuttable by clear and
convincing evidence Addresses an area of concern to
employees and physicians
18
ALERT! EMPLOYER OPPORTUNITY
Employers who do not provide injured workers appropriate, timely panels hurt themselves.
Lose control of claims when they do not act quickly to manage the claim.
ALERT! EMPLOYER OPPORTUNITYEmployers who do use the panel process proactively can better manage claims:Can negotiate discounts with the providers on panel.
Panel physician has a presumption of correctness regarding causation.
• Can be overcome by preponderance of evidence.
Employers can more easily monitor the medical progress of the claim.
MEDICAL PROOF
Treating physician must state that work primarily caused the injury to a “reasonable degree of medical certainty.”
Reasonable degree of medical certainty means, “ in the opinion of the physician, it is more likely than not considering all causes, as opposed to speculation or possibility.” T.C.A. 50-6-102(12)(D)
Treating physician’s opinion is presumed to be correct
DIFFERENT CONSTRUCTION OF LAW
Will replace current construction that the law must be liberally construed in favor of the employee.
New: Statute must be construed fairly, impartially and in accordance with basic principles of statutory construction.
THE OMBUDSMAN PROGRAM… Will provide education and assistance
to any party to a workers’ compensation claim that is not represented by an attorney.
Will be staffed by persons trained in Tennessee Workers’ Compensation law and rules of the various programs.
An ombudsman is not an attorney, and cannot provide legal advice, cannot sign documents on behalf of a party.
DUTIES OF THE OMBUDSMAN
The ombudsman will have the basic responsibilities of: Advising parties of the basics of workers’
compensation laws and procedures
Answering the questions of parties
Assisting parties in the completion of forms
Acting as a liaison among the parties to ensure communication among parties and efficiency in the administration of claims
MEDIATION PROCESS
The new Mediation Program will function similarly to the current Benefit Review Process, but from the start of the claim. Includes temporary and medical
benefits NEW—Additional requirements to act in good faith
Rules will be promulgated regarding “good faith”
Violation of those rules may lead to a penalty of up to $5,000
THE WORKERS’ COMPENSATION MEDIATION PROGRAM
All disputed claims must be mediated before a hearing in the workers’ compensation court will be scheduled. NEW - certification of dispute process
If parties cannot agree, disputes must be certified before appearing before judge
WORKERS’ COMPENSATION COURT
Judicial function moved from courts to DWC for permanency issues – DOI 7/1/14
Judges appointed by Administrator Licensed attorneys at least 30 years old Must have at least 5 years appropriate
experience Will serve a 6 year term; maximum of 3
terms There will be one Chief Judge Selection process
WORKERS’ COMPENSATION COURT
Judges will be located across state and will receive training prior to serving.
Judges can be removed for non-performance or for cause
Tennessee Code of Judicial Conduct Court hearings will be conducted in
accordance with TN Rules of Civil Procedure and Rules of Evidence
DUTIES OF A WC JUDGE Conduct hearings
Render orders, decisions and determinations in a timely manner
Approve settlements
Issue subpoenas
Compel obedience to judgments, orders and process through the assessment of civil penalties
NEW BOARD OF WC APPEALS
Will render and decisions on appeals of decisions by WC judge. Wholly separate from the Court of
Workers’ Compensation. 3 Appeal Judges
Appointed by Governor 6 year term, limit of 2 terms Licensed attorneys with 7 years
experience Parties will still have right of appeal to the Supreme Court.
ALERT! EMPLOYER OPPORTUNITY
Employer/Insurance Company can have a better outcome if they: Provide a representative with authority to
settle the claim at all mediations
Provide the opposing party all documentation and information pertinent to the claim that is necessary to engage in fruitful negotiations
Cooperate with the opposing party and the mediator in scheduling ADR proceeding
Arrive at ADR proceedings on time
TEMPORARY TOTAL DISABILITY (TTD) BENEFITS Amount unchanged for those
employees out 7 or more days
NEW—Ends when employee reaches MMI “when the treating physician ends all
active medical treatment and the only care provided is for the treatment of pain” with one exception—Mental/Mental claims
NEW— If TTD payments made post MMI, automatically offset against PPD
NEW IMPAIRMENT RATING PROCESS
Authorized treating physician’s (ATP) rating has presumption of correctness Presumption can be overcome by a
preponderance of the evidence
MIR Registry is still available when there is a dispute over the ratings MIR rating trumps treating physician's
All impairment ratings will be BAW
CURRENT PERMANENT PARTIAL DISABILITY (PPD) BENEFITS
The current PPD benefits are capped at: 1.5 X the impairment rating for cases
where the EE returns to work at the same ER earning at least 100% of pre-injury wage; and,
6 X the impairment rating for cases when the EE doesn’t.
The number of weeks of benefits are due varies. There is a list of 31 scheduled members that range from 10 weeks to 400 weeks.
For injuries to non-scheduled (BAW) members, the max number of weeks is 400.
NEW PERMANENT PARTIAL DISABILITY BENEFITS
Date of Injury
If worker does not return to work for any ER at 100% wage after initial disability period
Date Injured Worker Reaches Maximum Medical Improvement
NEW PERMANENT PARTIAL DISABILITY (PPD) BENEFIT
Employee eligible for PPD benefit whether they return to work or not when they reach MMI The initial PPD Benefit equals:
impairment rating X 450 X 66 ⅔ % of the EE’s average weekly wage
This benefit is for the period determined by multiplying 450 by impairment rating
Impairment ratings “shall not consider complaints of pain”
PERMANENT PARTIAL DISABILITY (PPD):HOW TO CALCULATE INITIAL BENEFIT Example:If the EE’s Average Weekly Wage is $750 and Impairment Rating is 7% :
Multiply .07 (rating) X 450 (weeks) X $500 (comp rate) = $15,750 during initial compensation pd.
• .07 X 450 = 31.5 weeks (compensation period)
If the EE hasn’t returned to work 31.5 weeks after MMI, he/she is entitled to additional benefits
PPD BENEFIT AFTER INITIAL BENEFIT If EE does not return to work or does, but
makes less than the pre-injury wage, the EE is eligible for additional benefits.
The additional benefit is determined by multiplying the initial benefit by all that apply: Factor of 1.35 because of loss of job or pay Factor of 1.45 if no HS diploma or GED Factor of 1.2 if employee > 40 years of age Factor of 1.3 if unemployment in county
where employed > 2 points above state average for year prior to initial period of compensation
PPD BENEFIT AFTER INITIAL BENEFIT
EE received $15,750 during the 31.5 weeks after the initial compensation period. Lump sum or periodic payments
EE may be eligible for additional benefit(s):Loss of job or lowered pay factor (1.35)Education factor (1.45) Age factor (1.2) Unemployment factor (1.3)
The actual benefit will depend on which factors apply.
PPD EXAMPLE: 3 OF 4 FACTORS Injured worker is 45, 8th grade
education, worked in Davidson County
Comp rate is $500 Impairment rating is 7% 0.07 X 450 X $500 X 1.35 X 1.2 X
1.45 = $36,996.75 in total benefits Employee would have already
received $15,750 in the initial benefit period
Additional benefit is $21,246.75
NEW PENALTIES Failure to mediate in good faith Failure to comply timely with order or
judgment issued by a WC judge Failure of employer to timely provide
appropriate medical treatment Failure of employer to provide panel Wrongful failure of employer to pay
TTD Wrongful failure to satisfy terms of
approved settlement
REFORMS ARE ONLY PART OF THE SOLUTION What Employers Can Do To Make the
System Better: Know the law Respond quickly and effectively to claims
• First Report of Injury even if you dispute the claim
• Contact Insurance Co. or TPA• Medical Panel• Wage Statement• Meet deadlines in law• If a claim is denied, file appropriate form
HOW DWC CAN HELP
Local DWC office can provide information and assistance
Education programs about Reforms and current law
Listen to your issues and look for solutions
Provide fair, impartial service to all parties
•AndersonAnderson
•BedfordBedford
•BentonBenton
•BledsoeBledsoe
•BlountBlount
•BradleyBradley
•CampbellCampbell
•CannonCannon
• CarrollCarroll•
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•ClaiborneClaiborne•ClayClay
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•CrockettCrockett
•CumberlandCumberland
• DavidsonDavidson•
•DecaturDecatur
•De KalbDe Kalb
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•FayetteFayette
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•LauderdaleLauderdale
•LawrenceLawrence
•LewisLewis
•LincolnLincoln•FayettevilleFayetteville
•LoudonLoudon
•McMinnMcMinn
•McNairyMcNairy
•MadisonMadison
•MarionMarion
•MarshallMarshall
•MauryMaury •MeigsMeigs•MonroeMonroe
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•WashingtonWashington
•WayneWayne
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•WhiteWhite•WilliamsonWilliamson
•WilsonWilson
• Revised:Revised: 07/13/2011 07/13/2011
•MemphisMemphis
•170 N. Main Street, 170 N. Main Street, 1111thth Fl Fl•Memphis, TN 38103-Memphis, TN 38103-18201820•Telephone: 901-543-Telephone: 901-543-60776077•Fax: 901-543-Fax: 901-543-60396039
•Nashville--Nashville--Metro Metro CenterCenter
•2222 Rosa L. Parks 2222 Rosa L. Parks Blvd.Blvd.•Nashville, TN 37228Nashville, TN 37228•Telephone: 615-741-Telephone: 615-741-13831383•Fax: 615-253-Fax: 615-253-24802480
•CookevilleCookeville
•444-A Neal Street444-A Neal Street•Cookeville, TN Cookeville, TN 38501-402738501-4027•Telephone: 931-520-Telephone: 931-520-42904290•Fax: 931-520-Fax: 931-520-43164316
•KnoxvilleKnoxville
•1525University 1525University AvenueAvenue•Knoxville, TN 37921-Knoxville, TN 37921-67416741•Telephone: 865-594-Telephone: 865-594-51775177•Fax: 865-594-Fax: 865-594-51725172•KingsportKingsport
•1908 Bowater Drive1908 Bowater Drive•Kingsport, TN 37660-Kingsport, TN 37660-41364136•Telephone: 423-224-Telephone: 423-224-20572057•Fax: 423-224-Fax: 423-224-20562056
•ChattanoogaChattanooga
•540 McCallie Ave, 540 McCallie Ave, Ste W600Ste W600•Chattanooga, TN Chattanooga, TN 3740237402•Telephone: 423-634-Telephone: 423-634-64226422•Fax: 423-634-Fax: 423-634-31153115
•MurfreesboroMurfreesboro
•845 Esther Lane845 Esther Lane•Murfreesboro, TN Murfreesboro, TN 3721937219•Telephone: 615-848-Telephone: 615-848-67436743•Fax: 615-217-Fax: 615-217-93789378
•JacksonJackson
•225 Dr. MLK Drive, 225 Dr. MLK Drive, 11stst Fl Fl•Jackson, TN 38301-Jackson, TN 38301-69856985•Telephone: 731-423-Telephone: 731-423-56465646•Fax: 731-265-Fax: 731-265-70227022
Division of Workers’ Compensation Offices1-800-332-2667
Website: www.state.tn.us/labor-wfd/wcomp
•MaconMacon
•4444
CONTACT INFORMATION Administrator
Abbie Hudgens [email protected]
Assistant AdministratorJeff Francis [email protected]
Benefit Review DirectorLandon Lackey
Administrative AttorneyJosh Baker [email protected]
Administrative Review Director
Mark Finks [email protected]
•4545
CONTACT INFORMATION
Compliance—Penalty, Uninsured Employers Fund, EMEEF Director
Kim Jefferson [email protected]
Utilization Review, Medical Fee Schedule, Medical Case Mgt.Suzy Douglas, R.N. [email protected]
Claims FilingsBonnie Hudgens [email protected]
Drug Free Workplace Program Lance Wheaton [email protected]
Medical Impairment Rating RegistryJay Blaisdell [email protected]
Questions?
•4646