Assisting Injured Employees who Work for the Uninsured, part two

By Attorney Richard Murrell

Last week, Judge Robert Durham offered an overview of the Uninsured Employers Fund (UEF) provision within the Workers’ Compensation Law. As Judge Durham noted, an injured employee of an uninsured employer faces significant barriers to recovery and return to work. Even if the employer is solvent, very few have the cash reserves or the willingness to cover the medical and disability cost associated with the work injury.

This week’s article explains how the Bureau administers the UEF program. But first, a brief disclaimer:  As Judge Durham pointed out last week, it is the role of the Court of Workers’ Compensation Claims to enter orders. My role as UEF Benefit Claim Manager, in contrast, is to administer the claims with the assistance of other Bureau staff and a third-party administrator.  

Necessary steps

To get started, the eligible employee must file a Petition for Benefit Determination, utilize the mediation process and obtain a court order for benefits. The Bureau has the discretion to authorize an evaluation for a medical causation opinion, if necessary, without a court order. No other benefits may be paid in the absence of an order. The statute provides discretion to the Bureau administrator, Abbie Hudgens, to begin benefit payments following an expedited hearing. Otherwise, payments cannot be made unless a request is submitted for the benefits within 60 days following the compensation hearing and the conclusion of any appeals. Where benefits are paid following the expedited hearing, the employee must continue to pursue the matter through the compensation hearing and any appeals or risk having to repay the benefits previously paid.

When the Bureau is notified an employer has allegedly failed to secure payment of workers’ compensation benefits as required under the law, a UEF investigator will be assigned. The investigator will issue a report on the findings that will include the eligibility factors. This report with an accompanying affidavit will become part of the Bureau’s file and is available to the parties during the mediation of the claim.

These claims are resolved through the mediation process, as often the injuries are not disputed and only the Employer’s inability to provide benefits, through lack of sufficient funds and/or lack of workers’ compensation experience, prevents the injured worker from receiving temporary disability and medical benefits. When the parties are able to agree to compensation through mediation and the employee is eligible for the UEF benefits, the mediator will work with the parties to draft a mediated settlement agreement. Despite the agreement, the mediator will issue a Dispute Certification Notice so that the Court can issue an order as the law requires. The agreed order and the Dispute Certification Notice will be sent to the Court Clerk. The claims that are not resolved through mediation will be sent to the Clerk in the same manner as all other claims.

The UEF investigator’s report will also be included in the Court file. When the Court determines an employee is eligible for benefits, the employee must still request benefits from the Fund. Attaching a copy of the Order to the Request for Benefits form satisfies the requirements of the statute.

The UEF Benefit Claim Manager (that’s me) will then assign the claim to the third-party administrator, currently HealthSmart. The TPA will contact counsel for the injured worker, if any, to obtain the necessary medical release to obtain any medical bills ordered to be paid and will also request a W-9 form from the employee, which is necessary before temporary benefits checks can be issued from the State. The TPA will apply the Tennessee Fee Schedule to eligible medical bills and submit that report to the Bureau for payment. The TPA can assist in arranging necessary and ordered medical treatment and causation evaluations authorized by the UEF Benefit Claim Manager.

Pointers for counsel

Claims have already been paid, both medical and temporary disability benefits, under the program. In some cases, the expedited hearing order did not contain an award of temporary disability benefits or provided only specified periods of disability benefits because the proof presented was incomplete or limited. Employees and their counsel have used motions to obtain subsequent orders when the additional proof was entered. Attorneys should consider asking the Court to approve fees based upon temporary disability benefits where that is desired. Some attorneys have declined to request these benefits, preferring to seek settlement directly with the employer.

The Bureau will collect from the employer the benefit amounts paid under this program. The employee will have to enforce his or her judgment against the employer for any benefits ordered that exceed the temporary disability and medical benefits maximum UEF benefit and benefits ordered that are not included in this program, such as future medicals and permanent disability payments.

This is still a relatively new program. I can be reached at richard.murrell@tn.gov or 615-253-1210 for any additional questions on how the Fund is administered.

Richard Murrell is the Bureau’s Director of Quality Assurance.

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