By Judge Pamela B. Johnson

The 2023 session of the 113^th Tennessee General Assembly adjourned on April 21. During this year’s session, three workers’ compensation bills successfully passed. Below is a summary of the notable changes, but please take the time to click on the links and read the full-text for yourself.

Public Chapter No. 145, effective July 1, 2023:

• Tennessee Code Annotated section 50-6-118(d)(1) and (2) will give the trial judge discretion to award a 25 percent penalty to an employee whose employer/carrier “unreasonably” fails to provide medical benefits under a settlement/judgment or after receiving actual notice of the obligation to provide treatment and a reasonable opportunity to obtain the information necessary to pay the expenses. An employer/carrier is not liable if payment is made, or treatment authorized, within 60 days of receipt of the information necessary to issue payment. The amendment changes “fails in bad faith” to “unreasonably fails” and add no liability language for payment within sixty days of receipt of information necessary to pay.

• Tennessee Code Annotated section 50-6-226(a)(1) authorizes a workers’ compensation judge to approve the reasonableness of the employee’s attorney’s fee, provided that the employee’s attorney’s fee shall not exceed 20 percent of the employee’s recovery (up to 450 weeks). The reasonableness of the employer/carrier’s attorney fee is also subject to trial court approval when the employer’s attorney fee exceeds $10,000.00. The amendment removes contradictory language. See Henderson v. Pee Dee Country Enterprises.

• Tennessee Code Annotated section 50-6-235(c)(1) will allow any party to file a form C-32 standard medical report bearing the physician’s original or electronic signature. A reproduced medical report, originally signed, is admissible as evidence unless a genuine question is raised as to the authenticity of the original, which the judge must resolve. This amendment allows an electronic signature and a copy of the form C-32 instead of requiring the original.

• Tennessee Code Annotated section 50-6-236(b)(4) now clarifies that after the parties reach a full and final settlement, a mediator, or a party’s legal representative, shall reduce the settlement to writing and each party shall sign. The amendment adds that a party’s legal representative may prepare settlement documents, not only the mediator.

• Tennessee Code Annotated sections 50-6-801(d)(1), 50-6-802(a), 50-6-802(b), and 50-6-802(c) allow the administrator to pay temporary disability, medical, and/or death benefits out of the uninsured employer’s fund, up to $20,000 for each category of benefits, but no more than $60,000 total. The amendment adds death benefits and increases the total cap to $60,000.

• Tennessee Code Annotated section 50-6-204(i) creates a voluntary physician education program.

• Tennessee Code Annotated sections 50-6-226(d)(1)(B) and(d)(2)(B) allow the trial court to award attorney fees when the employer/carrier unreasonably denies a claim or unreasonably fails to timely initiate benefits if the trial court makes a finding that the benefits were owed at an expedited or compensation hearing. The provision’s sunset was extended another two years to June 30, 2025. The amendment changes “wrongfully” to “unreasonably” but does not define “unreasonably.” Sunset provision is extended another two years to June 30, 2025.

Public Chapter No. 158, effective July 1, 2023:

• Tennessee Code Annotated section 50-6-210(e)(4) awards a surviving spouse who remarries, if there is no child of the deceased employee, a lump-sum payment equal to one hundred weeks based on 25 percent of the average weekly wage of the deceased employee, subject to the maximum total benefit. But, if there is a child(ren) under eighteen, or over age 18 if physically/mentally incapacitated from earning, from the time of the remarriage, the child(ren) has the status of orphan(s) and draw compensation, except the compensation shall not exceed 66 and two-thirds percent of the average weekly wage of the deceased employee. The amendment adds a lump-sum payment to the surviving spouse who remarries if the deceased employee has no child.

• Tennessee Code Annotated section 50-6-210(e) deletes all references to fifty percent and replaces them with 66 and two-thirds percent of the average weekly wage. All periodic payments are now paid at 66 and two-thirds percent of the deceased employee’s average weekly wage, regardless of classification of dependency.

• Tennessee Code Annotated section 50-6-210(e)(11) recognizes dependency for children of the deceased employee over the age of eighteen who are attending a recognized educational institution or completing a secondary education or a program leading to an equivalent credential, or enrolled in a recognized institution that provides postsecondary or career or technical education, and benefits are paid until age 22. The amendment adds eligibility for those attending a secondary education or program for technical or other career training.

• Tennessee Code Annotated section 50-6-210(g)(1)-(5) allows an employer/carrier to periodically require a dependent to provide information about whether the dependent continues to qualify for benefits. The employer/carrier may suspend benefits if the dependent fails to provide the requested information, and the employer/carrier must file a notice of change or termination of benefits with the Bureau within 15 days of the first omitted periodic payment. If the dependent provides the requested information, then the employer/carrier must restore periodic payments and remit any benefits withheld. The dependent may file petition for benefit determination if benefits are suspended or terminated. The amendment adds a requirement that a dependent periodically confirm qualifications of dependency still exist.

Public Chapter No. 465, effective Jan. 1, 2024:

• Tennessee Code Annotated, Title 7, Chapter 51, Part 1 is amended to add a new section, which creates a presumption that a firefighter’s diagnosis of post-traumatic stress disorder by a mental health professional occurred in the line of duty if the firefighter: directly witnessed death of a minor or treated a minor who later dies; directly witnessed a death or treated a victim with serious bodily injury of a nature that shocks the conscience; or responded to an event where a responder, co-worker of a responder, or family member of a responder sustained serious bodily injury or died. Under this presumption, the injury is compensable under the Workers’ Compensation Law unless it is shown by a preponderance of the evidence that the post-traumatic stress disorder was caused by non-service-connected risk factors or non-service-connected exposure. This bill applies to a firefighter who is diagnosed with post-traumatic stress disorder within one year of the firefighter’s final date of employment with the employer fire department. However, a mental condition resulting solely from disciplinary action, work evaluation, job transfer, layoff, demotion, termination, or similar action taken in good faith by the employer is not considered an injury sustained in the line of duty. The amendment adds a presumption that a firefighter’s diagnosis of post-traumatic stress disorder is compensable when certain requirements are met.

• Tennessee Code Annotated, Title 50, Chapter 6, is amended to add a new section, which establishes a grant program to be administered by the bureau to mitigate the costs to an employer of providing workers’ compensation for firefighters diagnosed with post-traumatic stress disorder by a mental health professional. The amendment adds a grant program.

Conclusion

Admittedly, many changes were made. While it may seem daunting to keep up with changes to the statute, rules of evidence and procedure, agency regulations, etc., this blog is here to help keep you informed.

Photo by Kim Weaver, paralegal, Knoxville.