DEFINITIONS

Employer

Under Tennessee law, the term “employer” is defined as “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.” TENN. CODE ANN. § 50-6-102(11) (2013). However, in order to be deemed an employer for purposes of the Tennessee Workers’ Compensation Act, the entity must employee at least 5 employees. Id. Importantly, the term also includes the employer’s workers’ compensation insurer. Id.

Statutory Employer

Tenn. Code Ann. § 50-6-113(a) (2013) provides that “[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.” Tenn. Code Ann. § 50-6-113(a) (2013).

Although the statute creates potential liability for principal contractors, the claim must first be “presented to and instituted against the immediate employer.” Tenn. Code Ann. § 50-6-113(c) (2013). Finally, any principal contract required to pay benefits pursuant to “may recover the amount paid from any person who . . . would have been liable to pay compensation to the injured employee, or from any intermediate contractor.” Tenn. Code Ann. § 50-6-113(b) (2013).

Employee

The definition of employee is quite broad. It “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” who is “under any contract of hire or apprenticeship, written or implied.” TENN. CODE ANN. § 50-6-102 (10)(A) (2013). The term also includes a deceased “employee’s legal representatives, dependents and other persons to whom compensation may be payable.” Id.

Importantly, the term “does not include a construction services provider” which, in turn, is defined as “any person or entity engaged in the construction industry,” TENN. CODE ANN. § 50-6-102 (10)(E) (2013).

Borrowed Employee

An employer can be a borrowed or special employer, and therefore liable for payment of workers’ compensation benefits, “if (a) the employee has made a contract of hire, express or implied, with the special employer; (b) the work being done is essentially that of the special employer; and (c) the special employer has the right to control the details of the work.” Catlett v. Indem. Ins. Co. of N. Am., 813 S.W.2d 411, 415 (Tenn. 1991) (quoting Winchester v. Seay, 409 S.W.2d 378, 381(Tenn.1966).

Independent Contractor

Independent contractors are not employees for purposes of payment of workers’ compensation. Determination of whether a worker is an independent contractor involves a multi-factor analysis. Factors to be considered include: “These factors include (1) the right to control the conduct of the work, (2) the right of termination, (3) the method of payment, (4) the freedom to select and hire helpers, (5) the furnishing of tools and equipment, (6) self-scheduling of working hours, and (7) being free to render services to other entities.” Catlett v. Indem. Ins. Co. of N. Am., 813 S.W.2d 411, 415 (Tenn. 1991) (quoting Bargery v. Obion Grain Co., 785 S.W.2d 118, 119–20 (Tenn. 1990). See also, TENN. CODE ANN. § 50-6-102 (10)(D) (i)-(vii)(2013).

While no one factor “is ‘infallible or entirely indicative,’ it has generally been recognized . . . that ‘the primary test for determining claimant's status as employee or independent contractor is the ‘right to control.’” Masiers v. Arrow Transfer & Storage Co., 639 S.W.2d 654, 656 (Tenn. 1982) (quoting Lindsey v. Smith & Johnson, Inc., 601 S.W.2d 923 (Tenn.1980)).

EXCLUSIVE REMEDY

General Rule

TENN. CODE ANN. § 50-6-108 (a)(2013) provides the statutory basis for Tennessee’s exclusive remedy. That section provides that “[t]he rights and remedies granted to an employee” under the Tennessee Workers’ Compensation Act, “on account of personal injury or death by accident . . . shall exclude all other rights and remedies of the employee.” TENN. CODE ANN. § 50-6-108 (a)(2013). Accordingly, “the employee is precluded from seeking tort damages for the injury.” Valencia v. Freeland & Lemm Const. Co., 108 S.W.3d 239, 242 (Tenn. 2003) (citing Liberty Mut. Ins. Co. v. Stevenson, 212 Tenn. 178, 368 S.W.2d 760 (1963)).

Exceptions

There are few exceptions to the exclusive remedy under the Tennessee Workers’ Compensation Act. The main exception is where the Employer has failed to obtain workers’ compensation insurance coverage for its employees. In that instance, the Employer is subject to suit under the workers compensation or the traditional tort system, at the Employee’s option. TENN. CODE ANN. § 50-6-406 (b)(2013).

One other exception is where the Employer commits an intentional tort. In that instance, the commission of “an intentional tort by the employer in person upon the employee will afford a ground for common law action for damages. Cooper v. Queen, 586 S.W.2d 830, 833 (Tenn. Ct. App. 1979) (citations omitted). Tennessee courts have reasoned that this result is necessary since “the employer cannot allege an accident when he has intentionally committed the act.” Id.

One related issue that arises under Tennessee law is whether the fault of the employer can be compared to the fault of the other parties in liability actions brought by the employee against potentially responsible third parties. In those cases, generally “the plaintiff's right to recover on allegations of negligence and strict liability is determined without reference to the employer's conduct.” Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 84 (Tenn. 1996). However, “[t]his is not to say, however, that the employer cannot be found by the trier of fact to have been a cause in fact of the plaintiff's injuries.” Snyder v. LTG Lufttechnische GmbH, 955 S.W.2d 252, 256 (Tenn. 1997).

Rather, the jury can “consider the actions of the employer only in assessing whether the plaintiff has met his burden of establishing the elements necessary to recover against the defendants.” Id. at 257. However, the jury is to specifically be “instructed that it may not, in making that determination, assess fault against the employer.” Id.

JURISDICTION AND LIMITATIONS OF ACTIONS

General Rule

Although both Circuit and Chancery Courts have jurisdiction over workers’ compensation claims, no Court has jurisdiction over a claim until the parties have exhausted the Benefit Review Process. TENN. CODE ANN. § 50-6-225(a)(2)(A) (2013). Importantly, under Tennessee law, “either party may file a civil action.”

As for venue, the only Courts with jurisdiction and proper venue over a workers’ compensation claim are the Courts in the county where “the employee resided at the time of the alleged injury or in which the alleged injury occurred.” TENN. CODE ANN. § 50-6-225(a)(2)(A) (2013). Where the employee lives outside of Tennessee, “the complaint shall be filed in any county where the employer maintains an office.” TENN. CODE ANN. § 50-6-225(a)(2)(A) (2013). If the Employer “is a county or a municipal corporation that has accepted the provisions of this chapter,” the case must be filed “in the county in which the governmental entity is located or in the county in which the incident occurred.” TENN. CODE ANN. § 50-6-225(a)(2)(B) (2013).

Extraterritorial Jurisdiction

If an Employee is injured outside the State of Tennessee in an accident which would otherwise be compensable under Tennessee law, he or she may seek Tennessee benefits if: (1) the employment was principally localized in Tennessee, (2) the contract of hire was made in Tennessee, or (3) the employee was a Tennessee resident and there existed a “substantial connection” between Tennessee and the employment relationship. TENN. CODE ANN. § 50-6-115(b)(2)(A)-(C) (2013).

Even so, “the general rule [is] that an employee is precluded from receiving Tennessee benefits if, prior to filing that claim, he or she: (a) affirmatively acted to obtain benefits in another state; or (b) knowingly and voluntarily accepted benefits under the law of another state.” Bradshaw v. Old Republic Ins. Co., 922 S.W.2d 503, 507 (Tenn. 1996). Importantly, “[w]hile the actual receipt of benefits may be considered as included in the first factor, it is not dispositive.” Id.

Time Limitation

Notice of Injury

Under the Tennessee Workers’ Compensation Act, where the Employer does not have actual notice of the injury, an injured employed is obligated to “immediately” provide “written notice of the injury" to the Employer “upon the occurrence of an injury, or as soon thereafter as is reasonable and practicable.” TENN. CODE ANN. § 50-6-201(a) (2013).

Indeed, the statute goes on to provide that “[n]o compensation” is payable under the Act “unless the written notice is given the employer within thirty (30) days after the occurrence of the accident.” TENN. CODE ANN. § 50-6-201(a) (2013). Failure to provide notice within 30 days is not dispositive, however, if the Employee has a “reasonable excuse for failure to give the notice.” TENN. CODE ANN. § 50-6-201(a) (2013). Increasingly, courts look to whether the Employer has suffered any real prejudice from the Employee’s failure to provide timely notice. In this regard, “[a]lthough lack of prejudice, by itself, is insufficient to excuse the failure to give notice, the matter is germane to a determination of notice.” Jones v. Helena Truck Lines, Inc., 833 S.W.2d 62, 64 (Tenn. 1992).

Discovery Rule

The simple rule in Tennessee is that “the limitations period for workers' compensation cases . . . does not commence until a plaintiff discovers or, in the exercise of reasonable diligence, should have discovered that he has a claim.” Gerdau Ameristeel, Inc. v. Ratliff, 368 S.W.3d 503, 508 (Tenn. 2012).

Statute of Limitations

For injuries on or after January 1, 2005, an injured Employee whose claim remains unresolved must file a Request for Assistance ("RFA") or a Request for Benefit Review Conference ("BRC") with the Tennessee Department of Labor within one year of the date of injury, if no benefits have been paid. TENN. CODE ANN. § 50-6-203(b)(1)(2013). If the Employer has paid benefits voluntarily or as a result of an Order to do so, then the request for BRC must be filed within one year of the latter of the date of last authorized treatment or the time the employer ceased making payments (date of issuance, not date of receipt). TENN. CODE ANN. § 50-6-203(b)(2)(2013).

If the BRC is not successful, then either party has 90 days after the BRC impasse report is filed within which to file suit in Circuit or Chancery Court in county with proper venue. TENN. CODE ANN. § 50-6-203(g)(1)(2013). Note that for injuries occurring on or after July 1, 2008, the filing of an RFA will toll the time period within which a Request for BRC must be filed until 60 days after the RFA has been resolved through a Benefit Review Report issued by the TDOL.

COMPENSABILITY

“Injury”Defined

The Tennessee Workers’ Compensation Act defines injury as “an injury by accident, a mental injury, occupational disease including diseases of the heart, lung and hypertension, or cumulative trauma conditions including hearing loss, carpal tunnel syndrome or any other repetitive motion conditions, arising primarily out of and in the course and scope of employment, that causes death, disablement or the need for medical treatment of the employee.” TENN. CODE ANN. § 50-6-102(12)(2013).

Recent amendments provide, however, that "[a]n injury is 'accidental' only if the injury is caused by a specific incident, or set of incidents, arising primarily out of and in the course and scope of employment, and is identifiable by time and place of occurrence." TENN. CODE ANN. § 50-6-102(12)(A)(i)(2013).

In determining whether an incident qualifies as an injury, "[t]he opinion of the physician, selected by the employee from the employer's designated panel of physicians . . . shall be presumed correct on the issue of causation." TENN. CODE ANN. § 50-6-102(12)(A)(ii) (2013). The opinion of the authorized treating physician is "rebuttable by a preponderance of the evidence," however. Id. .

Finally, under the Tennessee Workers’ Compensation Act, injuries “[d]o not include . . . [a] disease in any form, except when the disease arises out of and in the course and scope of employment; or . . . [c]umulative 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.” TENN. CODE ANN. § 50-6-102(12)(C)(i)-(ii)(2013).

Types of Injuries

Accident Not Required

Sudden or distinct accidents are not required in order to have a compensable workers’ compensation claim. Instead, “Tennessee law likewise recognizes that a worker may sustain a compensable gradual injury as the result of continual exposure to the conditions of employment.” Trosper v. Armstrong Wood Products, Inc., 273 S.W.3d 598, 604 (Tenn. 2008) (citing Cent. Motor Express, Inc. v. Burney, 214 Tenn. 118, 377 S.W.2d 947, 948–50 (1964)).

In Tennessee, then, “there is no requirement that the injury be traceable to a definite moment in time or triggering event in order to be compensable.” Id. Of course, because of recent changes to the definition of injury, most gradually occurring injuries are no longer ‘injuries’ unless they “arose primarily out of and in the course and scope of employment.” TENN. CODE ANN. § 50-6-102(12)(C)(i)-(ii)(2013).

Infectious Diseases

The current version of the Tennessee Workers’ Compensation Act provides that compensable injuries ““[d]o not include . . . [a] disease in any form, except when the disease arises out of and in the course and scope of employment.” TENN. CODE ANN. § 50-6-102(12)(C)(i)(2013). Generally, this will only be occupational diseases. However, some case law has allowed the potential for recovery for actual exposure to HIV as a mental injury. See e. g., Guess v. Sharp Mfg. Co. of Am., a Div. of Sharp Electronics Corp., 114 S.W.3d 480, 487 (Tenn. 2003)

Heart

Heart attacks can be compensable under Tennessee law. These cases are “categorized into two primary groups: those that are precipitated by physical exertion or strain and those resulting from stress, tension, or some type of emotional upheaval. Bacon v. Sevier County, 808 S.W.2d 46, 49 (Tenn. 1991).

Where the heart attack is from the first category, “the rule is well settled that if the physical activity or exertion or strain of the employee's work produces the heart attack, or aggravates a preexisting heart condition, the resulting death or disability is the result of an accident arising out of and in the course and scope of the employment.” Id. It is important to note that “no extraordinary exertion or unusual physical strain need be established in order to obtain a recovery.” Id. at 50 (citations omitted).

If the heart attack, however, falls into the second category, for it to be deemed compensable, “the heart attack must be immediately precipitated by a specific acute or sudden stressful event, rather than generalized employment conditions.” Id. at 52 (citations omitted). This triggering event “must be a specific, climatic event or series of incidents of an unusual or abnormal nature if the claimant is to be permitted a recovery. Id.

Psychological Injury

Tennessee provides “compensation for a mental injury when that injury has been caused by either (1) a compensable physical injury, or (2) a sudden or unusual mental stimulus, such as a fright, shock, or even excessive, unexpected anxiety.” Craven v. Corr. Corp. of Am., W2005-01537-SC-WCMCV, 2006 WL 3094121 (Tenn. Workers Comp. Panel Oct. 26, 2006) (citations omitted). However, worry, anxiety, and stress “within the bounds of the ups and downs of emotional normal human experience” are insufficient to support an award. Id. (citations omitted).

Moreover, “the plaintiff prove that the accident or occurrence arose out of employment, and the injury must be ‘caused by an identifiable stressful, work-related event producing a sudden mental stimulus such as fright, shock or excessive unexpected anxiety, and it may not be gradual employment stress building up over a period of time; in addition, the stress produced may not be usual stress, but must be extraordinary and unusual in comparison to the stress ordinarily experienced by an employee in the same type of duty.’” Id. Thus

As a result, the “plaintiff must prove by a preponderance of the evidence
(1) that his mental injury was a result of an identifiable stressful work-related event,
(2) that the event produced a sudden mental stimulus such as fright, shock or excessive unexpected anxiety and
(3) that the stress produced was extraordinary and unusual in comparison with the stress ordinarily experienced by an employee in the same type of duty. Id.

Occupational Diseases

Under the Act, occupational diseases are “all diseases arising out of and in the course of employment.” TENN. CODE ANN. § 50-6-301(12)(C)(i)-(ii) (2013). The Act lays out 6 criteria for determining whether the occupational disease arises out of employment:
(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.

TENN. CODE ANN. § 50-6-301(a)(1)-(6)(2013).

As with the general definition of injury, “[c]umulative 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.” TENN. CODE ANN. § 50-6-301(b)(2013). Further, the opinion of the authorized treating physician regarding causation is presumed correct. Id.

EXCLUSIONS AND DEFENSES

Course of Employment

To be compensable under the workers' compensation law, an injury must “aris[e] out of and in the course of employment.” TENN. CODE ANN. § 50-6-103(a)(2013). These two concepts “are not synonymous, although both elements exist to ensure a work connection to the injury for which the employee seeks benefits.” Blankenship, 164 S.W.3d at 354 (citing Sandlin v. Gentry, 300 S.W.2d 897, 901 (Tenn. 1957)).

The Supreme Court has clarified that ‘“in the course of’ refers to time, place and circumstances. Hubble v. Dyer Nursing Home, 188 S.W.3d 525, 533-34 (Tenn. 2006) (citing Hill v. Eagle Bend Mfg., Inc., 942 S.W.2d 483, 487 (Tenn. 1997)). Accordingly, “[a]n injury occurs in the course of employment if ‘it takes place within the period of the employment, at a place where the employee reasonably may be, and while the employee is fulfilling work duties or engaged in doing something incidental thereto.’” Id. (citation omitted).

Commuting

Simply commuting to or from work “is not acting within the course of employment . . . unless the injury occurs on the employer's premises.” Hubble v. Dyer Nursing Home, 188 S.W.3d 525, 534 (Tenn. 2006) (citing Howard v. Cornerstone Med. Assoc., 54 S.W.3d 238, 240 (Tenn. 2001); Lollar v. Wal–Mart Stores, Inc., 767 S.W.2d 143, 150 (Tenn. 1989)). Importantly, “the employer's parking lot is considered part of the employer's premises.” Id. However, “[once] the employee has exited the parking area and begins traveling on personal time, away from the employer's premises, he is no longer in the course of employment.” Id. (citing McCurry v. Container Corp. of America, 982 S.W.2d 841, 845 (Tenn. 1998)).

Travelling Employess

While regular commuting does not give rise to compensable claims, “[t]here are . . . exceptions which bring an employee's travel to and from work within the course and scope of his employment.” Hubble v. Dyer Nursing Home, 188 S.W.3d 525, 534 (Tenn. 2006) (citing Phillips v. A & H Constr. Co., 134 S.W.3d 145, 152 (Tenn. 2004)).

Perhaps the main exception is the special errand exception. This exception provides that “an employee may be compensated for an off-premises injury ‘while performing some special act, assignment or mission at the direction of the employer.’” Id. (citations omitted). Thus where the injured employee “having identifiable time and space limits on his employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule, the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently ubstantial to be viewed as an integral part of the service itself.” Id.

Arising out Of

As distinct from “course of employment, ‘“[t]he phrase ‘arising out of’ refers to cause or origin.” Hubble v. Dyer Nursing Home, 188 S.W.3d 525, 533-34 (Tenn. 2006) (citing Hill v. Eagle Bend Mfg., Inc., 942 S.W.2d 483, 487 (Tenn.1997)). As such, “[a]n injury arises out of the employment when ‘there is a causal connection between the conditions under which the work is required to be performed and the resulting injury.’” Id. (citations omitted).

The “idiopathic fall” is one of the more typical “arising out of” situations. Idiopathic falls “occur when the fall is caused by a condition of unknown origin.” Dickerson v. Invista Sarl, E200602144WCR3WC, 2007 WL 4973735 (Tenn. Workers Comp. Panel Oct. 18, 2007). These cases frequently “involve either an unexplained seizure or fainting episode . . . or a knee giving way without explanation.” Id. Injuries from such falls do “not arise from the employment.”

Under this principle, “an unexplained fall onto a bare floor is not compensable” but “if the work environment contains an additional risk element, for example, dangerous machinery or heights, that enhances the injury that would have otherwise occurred, the resulting injury will be compensable.” Id. (citations omitted). On the other hand, “a fall is not idiopathic if it is caused by some hazard or condition associated with the employment, such as a patch of ice at the workplace, and injuries caused by such a fall are compensable.” Id.

Intentionally Self-Inflicted Injury or Death

No compensation is allowed for injury or death due to the Employee's willful misconduct, intentional self-inflicted injury, or due to intoxication or illegal drugs, or willful failure to use a safety appliance or perform a duty required by law. The Employer has the burden of proof on these issues, including the proximate cause of intoxication or drug use. TENN. CODE ANN. § 50-6-110(2013).

Employee’s Violation of the Law, Intoxication, and Illegal Use of Drugs

As of 6-6-11, in circumstances where the employer is entitled to a presumption that the employee's intoxication was the proximate cause of the injury, this presumption can only be rebutted by "clear and convincing" evidence.

If the Employer has a "drug free workplace" pursuant to Tennessee law and there is a positive screening, the Employer may be entitled to a statutory presumption that the drug or alcohol use was the proximate cause of the injury, thereby providing a defense to the Employee's claim for workers' compensation benefits. See TENN. CODE ANN. § 50-6-110(c)1)(2013); § 50-9-101.

Willful Misconduct/Failure to Use Safety Device

Until recently, these defenses had separate tests. In 2012, however, the Supreme Court unified the analysis of these defenses into 1 test. Now, in order "to assert successful defenses for willful misconduct, willful disobedience of safety rules, or willful failure to use a safety device," the Employer must establish: "(1) the employee's actual, as opposed to constructive, notice of the rule . . . ; (2) the employee's understanding of the danger involved in violating the rule . . . ; (3) the employer's bona fide enforcement of the rule, . . . ; and (4) the employee's lack of a valid excuse for violating the rule. Mitchell v. Fayetteville Pub. Utilities, 368 S.W.3d 442, 452-53 (Tenn. 2012)

Personal Animosity

Generally, if one employee assaults another solely to gratify a personal or private grievance, unrelated to employment, the resulting injury does not arise out of employment within the meaning of the workers' compensation laws. McCurry v. Container Corp. of Am., 982 S.W.2d 841, 843 (Tenn. 1998) (citing Brimhall v. Home Ins. Co., 694 S.W.2d 931, 932 (Tenn.1985)).

Hostile Attacks

Attacks "falling into the third category 'depend on the facts and circumstances of the employment.'" Id. (citations omitted). In this regard, the Supreme Court has held that:
When an employee suffers a “neutral assault” within the confines of her employer's premises—whether the premises be a home office or a corporate office—the “street risk” doctrine will not provide the required causal connection between the injury and the employment unless the proof fairly suggests either that the attacker singled out the employee because of his or her association with the employer or that the employment indiscriminately exposed the employee to dangers from the public.

Statutory Caps

For injuries occurring July 1, 2004 or later, the total value of which could be 200 weeks or greater, the maximum award for employee who returns to work for the pre-injury employer at an equal or greater rate of pay is 1.5 times the permanent medical impairment rating. TENN. CODE ANN. § 5-6-241(2013).

As of July 1, 2009, injured employees who are undocumented aliens are subject to the 1.5 cap. If there is proof that the employer "knowingly hired" the undocumented alien, the employer may be required to pay up to an additional 3.5 times the rating to the uninsured employer's fund. TENN. CODE ANN. § 5-6-241(2013).

“In appropriate cases,” the award as described above may be subject to reconsideration if the Employee loses his job within a specified time after returning to work, as long as a Request for Benefit Review Conference ("BRC") is filed in a timely manner. The Employee’s voluntary resignation, retirement, or misconduct may preclude reconsideration. TENN. CODE ANN. § 5-6-241(2013).

If the Employee does not return to work for the pre-injury Employer at an equal or higher wage rate, or if the Employee files an appropriate petition for reconsideration, for injuries subject to a maximum of 200 weeks or more, then the award is limited to a maximum of 6 times the permanent medical impairment rating as determined by the Court, minus any PPD already paid. If the Court uses a multiplier of five or more, it must make specific findings of fact. TENN. CODE ANN. § 5-6-241(2013).

Breaking the Cap

If the Employee establishes by clear and convincing evidence three of four criteria, the Court can award more than six times the rating. The award is limited to 400 weeks prior to July 1, 2004 and up to the maximum weeks in the schedule for injuries after July 1, 2009:
1.       Employee lacks high school diploma or equivalency, or cannot read and write at 8th grade level;
2.       Employee is age 55 or older;
3.       Employee has no reasonably transferable job skills; and/or
4.       Employee has no reasonable employment opportunities locally.

TENN. CODE ANN. § 5-6-242(2013).

BENEFITS

Calculation of Average Weekly Wage

The average weekly wage is determined by calculating the Employee's average gross wages per week for the 52 week period prior to the alleged accident date. If the Employee worked less than 52 weeks, or missed more than 7 days (even if non-consecutively), then the total wages are divided by the actual number of weeks worked to arrive at the AWW. TENN. CODE ANN. § 50-6-102(a)(1)(A) (2013). The wage statement, or C-41, must be filed with TDOL within 30 days of Notice of Injury or the maximum rate may apply. The workers’ compensation rate is sixty-six and two thirds percent (66.67%) of the average weekly wage. TENN. CODE ANN. § 50-6-207(1)(2013).

Total Disability

Temporary Total Disability Benefits

Temporary total disability (“TTD”) benefits are due for lost time following the seventh day after the injury. If less than 14 days has passed before employee's return to work, TTD is paid only from the eighth day forward. If 14 or more days has passed, TTD benefits must be paid from the first date of disability. TENN. CODE ANN. § 50-6-205(a)(2013).

TTD “benefits are terminated either by the ability to return to work or attainment of maximum recovery.” Simpson v. Satterfield, 564 S.W.2d 953, 955 (Tenn. 1978). However, once Employee reaches MMI and an impairment rating is given, weekly benefits (if voluntarily paid) must continue for up to 60 days or the value of the PMI rating, whichever is less. This amount is credited to the PPD award. TENN. CODE ANN. § 50-6-234(d)(2013).

Permanent Total Disability Benefits

Employees who are adjudged permanently and totally disabled (unable to engage in any work activity which generates an income) are entitled to weekly benefits at the Employee’s compensation rate until the Employee is, by age, eligible for full benefits in the OAB program of Social Security. Such benefits are not subject to the Maximum Total Benefit. TENN. CODE ANN. § 50-6-207(2013).

Second Injury Fund

Where the employee is found to be permanently and totally disabled the Second Injury Fund may have exposure for some of the prior disability. The statute provides that in these cases, “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.” TENN. CODE ANN. § 50-6-208(2013).

However, in order “[t] o 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.”Id.

Partial Disability

Temporary Partial Disability Benefits

Permanent Partial Disability

Permanent partial disability benefits are paid pursuant to the statutory schedule depending upon which part of the body is injured. The most common schedules are body as a whole, which entitles the employee to up to 400 weeks of benefits, and extremity cases, which entitle the employee to up to 200 weeks of benefits. Other scheduled member injuries are:

Penalties

Any Employer or carrier which fails to pay benefits as provided in the Act shall pay a penalty of six percent (6%) on any unpaid installments. For injuries after July 1, 2004, this penalty increases to 25% of unpaid TTD if TTD not paid within 20 days after employer has knowledge of qualifying disability. TENN. CODE ANN. § 50-6-205(b)(3)(2013).

For injuries prior to July 1, 2004, if an Employer wrongfully fails to pay an Employee's claim for TTD benefits, the Employer shall be liable, in the discretion of the Court, to an additional sum not to exceed twenty-five percent (25%) of such TTD claim. However, the Employee must establish that the failure to pay was not in good faith and inflicted additional expense, loss or injury upon the Employee. TENN. CODE ANN. § 50-6-225(k) (2013).

An Employer who, within 60 days of settlement, judgment or decree, fails to reimburse compensable medical expenses, or fails in bad faith to provide reason- able and necessary medical benefits, after reasonable notice of such obligation to provide treatment, may be liable for (1) the amount due for medical expenses; and (2) an additional 25% of medical expenses. This provision applies only if the refusal was not in good faith and it inflicted additional expense, loss or injury on employee. TENN. CODE ANN. § 50-6-225 (2013).

An Employer who knowingly, willfully and intentionally fails to provide reasonable and necessary medical treatment (or reimbursement) when the Employer knew the claim was compensable is subject to a $500.00 civil penalty. TENN. CODE ANN. § 50-6-128(2013).

If an Employer/Insurer fails to comply with an Order of a Workers' Compensation Specialist within 15 days, the Commissioner shall assess a $10,000.00 penalty. If proof of compliance is not provided within five days of penalty assessment, additional penalties of $1,000 per day shall accrue beginning on the 21st day. TENN. CODE ANN. § 50-6-238(d)(2013).

Counsel Fees

Plaintiffs’ attorney fees are set under the Act. Under the Act, “[t]he 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.” TENN. CODE ANN. § 50-6-226(2013).

Additionally, however, defense counsel fees are “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).” TENN. CODE ANN. § 50-6-226(2013).

Death Benefits

As in most states, the schedule of death benefits is set forth in great detail in the Act. See generally, TENN. CODE ANN. § 50-6-210(2013).

Surviving Spouse and No Dependent Child

The surviving spouse receives 50% of the deceased employee’s average weekly wage. Note that the spouse would still receive the full maximum benefit. The only change is that weekly benefits would just be paid out at 50% of the AWW instead of 66.67% as in the typical case. As a result, each week’s benefit will be a lower amount, but the benefits will be paid out over a longer period of time. If the spouse remarries, all benefits terminate.

Surviving Spouse and Children

In this scenario, the surviving spouse receives benefits equivalent to the regular workers’ compensation rate, or 66.67%. The Court is authorized to determine what portion of this amount is to be paid for the children’s benefit and can order it paid to a guardian other than the surviving spouse. If the spouse remarries with surviving dependent children, the spouse’s benefits cease and the dependent children are treated as dependent orphans, described below. Note that benefits to children and dependent orphans cease when they reach 18 unless they are attending a recognized educational institution in which case benefits continue until they are 22.

Dependent Orphans

Where the deceased employee leaves 1 dependent orphan, benefits are paid at 50% of the AWW. If there are 2 or more, benefits are paid at 66.67% of the AWW.

Parent or Parents

If the only dependents left are the employee’s parents, they receive 25% of the AWW, if only one parent is left. If both dependent parents are alive, then benefits are paid at 35% of the AWW.

Grandparent, Brother, Sister, Mother-in-law or Father-in-law

If the only dependent family members fall under this category, benefits are paid at 20% of the AWW if only 1 dependent family member and 25% if more than 1. If more than 1, the benefit payments are to be divided equally between them.

Medical Benefits

In general, the Employer is required to provide a panel of three physicians not associated together in practice for selection of the attending physician by the Employee. In orthopedic/neurosurgical cases, it may be a panel of 5 with 4 associated together. TENN. CODE ANN. § 50-6-204(2013).A chiropractor must be added in back injury cases (limited to 12 visits). Id.

The Employer has the right to have the employee evaluated “at all reasonable times” by a physician of its choice. Id. If there is a dispute regarding the impairment rating, either party may request an evaluation from the TDOL’s “MIR Registry.” Id. As of July 1, 2012, pain management panels can include physicians within a 175 mile radius of work or home. Id. The use of certain scheduled medications for more than 90 days is subject to Utilization Review. Id. In such cases, the employee can lose the right to receive these scheduled medications if there is more than one violation of a pain management contract. In certain cases, more than one pain management contract violation can constitute “misconduct” under TENN. CODE ANN. § 50-6-110(2013). Id.

Refusal of Medical Treatment

An employee’s refusal to comply with requested medical treatment can allow for a suspension of benefits, but only during the period of noncompliance.

SUBROGATION

General Rule

Employee may have a claim against that third party and the Employer "shall" have a subrogation lien for workers’ compensation benefits paid to date and a subrogation credit to be applied against future liability, up to the Employee's net recovery. TENN. CODE ANN. § 50-6-112(2013). However, when indemnity is concluded by lump sum, there is no future credit or setoff of net recovery against future medical benefits. See Graves v. Cocke County, Tenn. and Cocke County Schools, 24 S.W.3d 285 (Tenn. 2000).

If the Employee fails to file suit against the other party within one year after the date of the injury, this acts as an assignment of the claim to the Employer, which then has an additional six months to file suit against the other party. The "made whole doctrine" is not applicable to workers' compensation subrogation. TENN. CODE ANN. § 50-6-112(2013).

Attorney’s Fee

In workers’ compensation subrogation cases, the attorney representing the employee, if the employee files suit within the statute of limitations, is “entitled to a reasonable fee for the attorney's services, and the attorney shall have a first lien for the fees against the recovery.” Id. If the employer also retains counsel and the parties cannot agree on the fee division, “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.” Id.

LITIGATION AND APPEAL

Tennessee Department of Labor

Workers’ compensation Specialists have three primary roles:
(1) Requests for Assistance: A TDOL Specialist II or III will first attempt to resolve disputes seeking temporary disability or medical benefits by agreement. If no agreement is reached within a specified time frame, the RFA will be referred to a Specialist IV, who will hold a telephone conference, then issue an Order. During this phase, no ex parte communications are allowed and all parties are entitled to review all materials considered by the Specialist. Either party may seek Administrative Review of such an Order.
(2) Requests for Benefit Review Conference: A BRC (mandatory mediation) must be held before litigation can be filed.
(3) Requests for Settlement: A Specialist IV has the authority to review and approve proposed settlements. Source: TENN. CODE ANN. § 50-6-236(2013), TENN. CODE ANN. § 50-6-238(2013).

Courts

Jurisdiction

If the parties cannot resolve the matter through the BRC process, then either party may file suit “ 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.” TENN. CODE ANN. § 50-6-225 (2013). If the employee lives outside of Tennessee and the injury also occurs outside of Tennessee, “the complaint shall be filed in any county where the employer maintains an office.” Id..

Appeal to Supreme Court

Under the Tennessee Workers’ Compensation Act, appeals of workers’ compensation matters go directly to the Supreme Court. Id. That said, the Supreme Court is authorized by the Act to refer appeals “to a panel known as the special workers' compensation appeals panel.” Id. The panel is comprised of “three (3) judges designated by the chief justice, at least one (1) of whom shall be a member of the supreme court.” Id.

SETTLEMENT

All workers’ compensation settlements must be approved wither by a judge or by the TDOL. For injuries on or after June 6, 2011, the parties may negotiate termination of future medical benefits, provided that any Medicare or TennCare interests are adequately addressed in the settlement. For injuries between July 1, 2004 and June 5, 2011, settlements cannot provide for termination of future medical benefits for any injuries with a maximum value of 200 weeks or greater. Three years after settlement approval, parties may then negotiate closure of future medical benefits, which will require additional approval. For injuries on or after June 6, 2011, "doubtful and disputed" settlements can be for any amount, provided that the approving entity finds that the settlement is in the "best interests" of the Employee. For injuries occurring between July 1, 2004 and June 5, 2011, "doubtful and disputed" settlements are limited to a maximum of 50 times the minimum compensation rate for that date of injury.

Mandatory Mediation

All claims arising after July 1, 2004 must proceed to a BRC with the TDOL before either party can file suit. TENN. CODE ANN. § 50-6-225 (2013).

Voluntary Mediation

The requirement of a mandatory BRC does not preclude voluntary BRCs at a later point in the litigation.

Compromise and Release

As stated above, “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.” TENN. CODE ANN. § 50-6-206(2013). Settlements may also be approved by a specialist at the TDOL. Whether reviewed and approved by the Court or the TDOL, the judge or specialist is obligated “to examine the proposed settlement to determine whether the employee is receiving, substantially, the benefits provided by this chapter.” Id.

INSURANCE

General Rule

All “employers” in Tennessee “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.” TENN. CODE ANN. § 50-6-405(2013).

The term “employer” is defined as “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. TENN. CODE ANN. § 50-6-102(2013). Thus, most businesses employing 5 people are required to maintain workers’ compensation insurance.

The main exception to this general rule is for businesses “engaged in the construction industry.” Tenn. Code Ann. § 50-6-902 (2013). Those businesses are generally “required to carry workers' compensation insurance on themselves . . . whether or not the provider employs fewer than five (5) employees.” Id. The statute defines “engaged in the construction industry” as

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.

TENN. CODE ANN. § 50-6-901(2013)

Damages by Action at Law Where Employer is Uninsured

If an Employer fails to secure workers’ compensation insurance, “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.” TENN. CODE ANN. § 50-6-406 (2013). In these cases, then, the Employee can select to pursue workers’ compensation benefits or sue the Employer in tort. The Employee cannot choose both remedies, however, and choosing one waives the other. Id.

If the Employee chooses to sue in tort, “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.” Id.