By Judge Pamela Johnson, Knoxville; Judge Dale Tipps, Murfreesboro; and Judge Josh Baker, Nashville
Can you teach old dogs new tricks? We believe you can and must when it comes to settling your case in the Court of Workers’ Compensation Claims.
A landmark change took place approximately one year ago now, when we went to telephone approvals due to the pandemic. We’ve said it before, we’ll say it again: Thanks for your flexibility in rapidly adjusting to the revised processes. Eventually we’ll all change back to the former protocols. That will be a happy day.
During this time, we’ve been approving settlements at our home offices, frequently with the furry co-workers observing. We’ve shared a few frustrations with them when things haven’t gone smoothly. So below are a few pointers from them and us.
Last July, we wrote to update you on a few recent legislative changes. One of those changes affected the calculation of the initial compensation period. The 2020 amendment to Tennessee Code Annotated section 50-6-207(3)(B) extended the initial compensation period for injuries occurring on or after June 22, 2020, in certain circumstances. As amended, the date the compensation period expires is determined by: (1) multiplying 450 weeks by the assigned impairment rating, or (2) 180 days after the employee reaches maximum medical improvement, whichever is later. Because of this change, the Court revised the explanation of benefits form to reflect these changes to the compensation period.
Settlements for claims with dates of injury after June 22, 2020, are now appearing before the Court. As part of the review process, the Court verifies that the parties have properly calculated the date the compensation period expires and listed the correct date in the settlement agreement.
Unfortunately, we regularly see proposed settlement documents that incorrectly calculate the initial compensation period. The most common error is failing to apply the 180-day period in cases involving smaller impairment ratings. (Rule of thumb: if it’s 5% or less, use the 180-day period).
So, to save yourself time during the hearing (and not wind up in the dog house with the judge and/or your client), ask yourself the following questions before submitting your settlement documents:
- Am I using the most recent settlement templates?
(Click here to download most recent templates. Scroll down to “Common Templates.”)
- Am I using the most recent explanation of benefits?
(Click here for latest EOB.)
- Have I correctly calculated the initial compensation period?
(Click here for a date calculator.)
We also encourage the employer’s attorney–not just their staff–to speak directly with the employee in advance of the settlement hearing. We’ve found that the defense attorneys who have spoken with the employee before the settlement hearing often find and correct errors in the settlement documents. This helps avoid issues during the hearing caused by incorrect/incomplete education information and inaccurate information about the employee’s return-to-work status.
We would be remiss if we didn’t acknowledge the improvement in fully completing the SD2. Thank you for your diligence. Your attention to detail greatly reduces the length of each settlement hearing. However, we still find ourselves regularly having to fill in some blanks. It would be helpful if you make every effort to fill in all the fields, including the judge’s name and date of settlement approval where possible.
If you follow these suggestions, you’re sure to make the judge as happy as a dog with two tails.
Murray, Lucy, Mimi and Cooper appreciate your cooperation.
From the Bench 
Is there an opportunity for claimant’s lawyers to be heard concerning language that is included in the templates that are being “required” by the Bureau for settlements? In particular, the use of the word “directly” in the settlement template as it relates to causal connection for eligibility for future medical treatment. It is my belief that “directly” should not be used in the template as it is not a condition for treatment in Section 204 and the caselaw does not impose this limitation but the template does.
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It is interesting – and disappointing – that the Bureau of Workers’ Compensation Judiciary appears to be taking on the role of policing the Initial Benefit Period in settlement approvals. There is no law saying that an employer is prohibited from paying an employee sooner than the statute allows (or more than the statute allows). If an employer pays multiplier benefits prior to the expiration of the IBP, whether it be by generosity or error, it is absolutely NOT THE ROLE OF THE JUDGE to decline approval of that settlement.
The statutory duty of the judge in a settlement approval, pursuant to Tenn. Code Ann. § 50-6-240, is to ensure that the employee is “receiving, substantially, the benefits provided by this chapter.” That’s it. Period. It does not say the judge must ensure that the employee receives those benefits “and nothing more.” Court approval was enacted as a safeguard for the employee, to ensure that employers did not take advantage of employees with unfair settlements that did not provide the benefits to which they were entitled.
If an employer wants to pay an employee the Initial Benefit plus statutory multipliers less than 180 days after MMI, that is the employer’s prerogative, and there is no legal mandate for the judge to intervene and stop the employee from receiving the benefit of that settlement agreement between the parties.
I have not seen the Judiciary refuse to approve settlements where an employee agrees to settle for the Initial Benefit and multipliers when the employee might have been entitled to more money via § -242 or permanent total disability. Why should the court intervene to protect an employer but not the employee? That is the opposite of the safeguard the approval process was enacted to create.
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Thank you for this article. As an FYI it is hard to “fully” complete SD-2 as to date of approval and Judges name as that information is not available when our “executed” documents are tendered to the court to get a hearing. In BWC/CWCC offices with more than one Judge the name cannot be entered and the date of approval comes after document submission. Thanks
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Thanks for reading our blog and for your comments.
In response to Mr. Dunigan’s concerns, to clarify, the Court doesn’t restrict the ability of parties to settle the enhanced benefits before the expiration of the initial compensation period.
This article was intended to note that some of the proposed settlement agreements for post June 22, 2020 injuries have failed to incorporate the 180-day initial period. We simply wanted to point this out, so counsel will have the correct date in their settlement documents.
Again, we value everyone’s readership and input.
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