By Judge Brian Addington, Gray
I recently took my son and members of his cross-country team on a running and history trip. The boys ran two 5K races, one in Virginia and the other in Pennsylvania. They had a good time running, and we enjoyed some relaxing days at the pool.
We also toured a few Civil War battle sites. At our stop in Gettysburg National Military Park, I was pointing out the direction of a quite famous charge when a volunteer at the site interrupted to say, “They did not come from that direction you just said!” All the while he was motioning from . . . the very direction I had just said. If there was any difference, it was maybe two or three degrees. My thought was, “What’s the difference?”
It seemed like a difference without a distinction. Sometimes, however, a difference really is, well, much different. Take, for instance, the phrase “reconsideration” when talking about workers’ compensation in Tennessee.
Reconsideration was the right of an injured employee to re-open a claim for additional permanent partial benefits, if the injured employee lost his or her job within a 200 or 400-week timeframe from when the employee’s doctor put him or her back to work. It was a very static period that did not increase or decrease and was based on the body part injured. If the parties couldn’t reach a settlement on the employee’s reconsideration rights, a judge could award up to six times the original impairment rating, with a credit of course for what had already been paid.
The phrase “reconsideration,” however, doesn’t apply to cases with an injury date of July 1, 2014, or later. The Reform Act changed both the terminology and the time periods. Now, when an injured employee is placed at maximum medical improvement and assigned an impairment rating, the clock starts ticking based on the percentage of disability the physician assigns. For example, considering a base of 450 weeks and the doctor assigns a 2% rating, that equates to nine weeks of benefits. This nine-week period is called the “original award.” Instead of it being a flat 200/400-week period, each case has a different original award based on the disability rating.
If at the end of the original award, the employee hasn’t returned to work or returned at reduced wages, then he or she is entitled to request “increased benefits.” If the parties cannot reach a settlement, a judge may increase the original award by a factor of 1.35 for loss of the job, called the “resulting award.” The resulting award may be likewise increased by the product of the following applicable factors: 1.45 for lack of a GED or high school diploma; 1.2 if the employee was over 40 years old when the original-award time period ended; and 1.3 if the employee lived in an area with higher than normal unemployment. But, under certain circumstances an employee may apply for additional disability benefits beyond the above figures.
If an employee qualifies for the increased benefits outlined above, he or she may be able to qualify for additional disability benefits with “clear and convincing evidence” that limiting the recovery to the multiplier benefits would be inequitable under the circumstances and the existence of these three facts:
- He or she has an impairment rating over 10%;
- The authorized physician certifies that the employee cannot perform the employee’s pre-injury occupation (a form exists for this); and
- The employee is earning less than 70% of his or her pre-injury average weekly wage or salary.
So you can see, unlike the difference of opinion I had with the volunteer at Gettysburg, a big difference exists between old-law “reconsideration” cases versus the “increased benefits” under the new law. The time periods are widely different, and the end result might be a substantial difference in the monetary benefits.
It took a while, but the Court of Workers’ Compensation Claims’ docket now has a sizeable number of pending increased-benefits cases. In some of these cases, attorneys have fallen back on the former verbiage and called their disputes “reconsideration” cases. And we judges have politely corrected them. If you’ve been corrected, it’s not because we want to embarrass you; it’s because the difference really is substantial.
Finally, if you’ve not been to Gettysburg, you absolutely must correct that. It is one of the most beautiful and yet solemn places I’ve ever seen.