TN WORKERS’ COMP CHRONICLE January 2012

1. TN Workers’ Comp Chronicle
January 2012
Inside This
Issue:
• Bluegrass Office
Opened
• 2012 Changes
• Drug Free
Workplaces
• 2011 Case Law
Review
-MIR
-IME
-SOL
-TPD
• Statistical Data
Report Findings
Moore, Ingram, Johnson & Steele LLP (865) 692-9039
MIJS Opens Louisville, Kentucky Office
MIJS is proud to announce the opening
of our newest office location in
Louisville, Kentucky. The opening of
this office will allow MIJS to provide
excellent legal representation to clients
throughout the entire state.
The new office is located at 9900
Corporate Campus, Suite 3000
Louisville, KY 40223. Troy Hart was
recently sworn in by the Kentucky
Supreme Court and is excited to begin
servicing the Bluegrass State. Please
contact Troy Hart to discuss how MIJS
can meet your legal needs in
Kentucky.
Changes in 2012
2012 promises to be an interesting year
for Tennessee’s workers’
compensation system. With new
leadership at the helm, the Tennessee
Department of Labor has announced
forthcoming changes to the Benefit
Review Process. Specifically, the
Department is modifying its RFA
process by placing level IV
specialists—i.e. attorneys—in charge
of temporary benefit determinations.
Although Department attorneys have
signed off on orders for some time, the
Department indicates that its attorneys
will be assuming a primary role in
disputes over temporary benefits.
Whether this will make a practical
difference remains to be seen.
More Reform?
Nevertheless, rumor has it that
Governor Bill Haslam has set his eye
on more reforms to Tennessee’s
current system. The General Assembly
will convene on January 10, 2012, and
there is a good chance that significant
changes will be proposed. As always,
MIJS will monitor the legislative
session for any important
developments.
2011 Amendments Take Hold
But regardless of any additional
reform, 2012 will provide an
opportunity for the 2011 legislative
changes to fully kick in. For instance,
the ability to close future medicals will
make settling claims much more
interesting and require additional
considerations such as Medicare’s
interests. Additionally, the precise
meaning of the new “primarily” arising
out of standard for occupational
diseases will continue to be debated in
the courts.
MIJS looks forward to the challenges
of 2012 and plans to make the most of
these new opportunities. From all of us
here at the firm, Happy New Year!
By: Gregory H. Fuller

2. TN Workers Comp Chronicle Page 2 of 4
Yet another reason to join the
Drug Free program.
On July 1, 2011, the Tennessee General
Assembly enacted House Bill
2047/Senate Bill 1785, which amended
and strengthened the Tennessee
Workers’ Compensation Act’s Drug-
Free Workplace Presumption.
Specifically, the Amendment raised the
evidentiary standard an employee must
meet when attempting to rebut the
presumption that alcohol or drug use
was the proximate cause of an alleged
work-related injury.
Prior to the Amendment, an Employee
who failed or refused to submit to an
alcohol or drug test after alleging a
work-related injury was presumed to
have been intoxicated at the time of the
alleged injury and, therefore, unable to
recover under the Act. However, the
presumption could be rebutted if a Court
found that the employee established, by
a preponderance of the evidence, that the
drug or alcohol use was not the
proximate cause of the injury.
Preponderance Standard
Generally, "a preponderance of the
evidence is evidence that is of greater
weight or more convincing than the
New Law Strengthens Drug Free Workplace
Tennessee 2011 Case Law Update
evidence that is offered in opposition to
it, or, evidence that as a whole shows
that the fact sought to be proved is more
probable than not.” Consequently, a
preponderance of the evidence standard
often times, allowed an employee to
rebut the presumption by relying upon,
menial evidence, such as witness’
testimony.
Clear & Convincing Evidence
Under the new law, employees must
prove that their drug or alcohol use was
not the proximate cause of the injury by
clear and convincing evidence.
Accordingly, employees can no longer
rely upon self-serving proof, but rather,
must submit evidence that “eliminates
any serious or substantial doubt
concerning the correctness of the
conclusions to be drawn from the
evidence” and “produces in the fact
finder's mind a firm belief or conviction
with regard to the truth of the allegations
sought to be established.”
For employers participating in the Drug
Free Workplace Program, the new law is
a breath of fresh air.
By: Jodi Loden
Not only did 2011 bring
substantial legislative changes, it
also provided several important
developments in the courts. The
following cases are noteworthy.
MIR-Beyond Impairment
In Courier Printing Co. v. Sims,
the Tennessee Workers’
Compensation Panel ruled that
the deposition testimony of a
Medical Impairment Registry
(MIR) physician was admissible
in workers' compensation case
for purposes other than
permanent impairment.
.
At deposition, the MIR physician
testified that the employee’s
injuries were causally related to
his employment.
The Appeals Panel ruled that the
testimony of the MIR physician
was relevant pursuant to Rule
401 of the Tennessee Rules of
Evidence and that it was
admissible because there was no
specific prohibition of the use of
such evidence in the statute that
created the MIR or the rules
which implemented it. However,
the Court noted that the opinions
stated by an MIR physician on
matters other than the degree of
impairment do not carry the
presumption of correctness
afforded by the statute to the
impairment rating.
This decision is a double-edged
sword. It broadens the scope of
MIR physicians for better or
worse. Thus, in cases where
compensability is at issue, the
MIR should be approached with
caution.
By: Sarah Best

3. TN Workers’ Comp ChroniclePage 3 of 4
2011 Case Law Review
IME-What Makes It Reasonable
In Irons v. K& K Trucking, the
Appeals Panel confirmed that the
“bar for unreasonableness” of an
IME request is indeed high after a
trial court denied a motion to
compel a post-settlement IME. The
Appeals Panel reversed finding
adequate support for the
employer’s request for an IME
based upon 1) the opinions of the
utilization review physician and 2)
the opinions of a physician
retained to perform a records
review.
In response to the authorized
treating physician’s post-settlement
recommendations for trigger point
injections, the UR provider found
that the medical records failed to
document the existence of any
trigger points to justify the
proposed injections or note any
evidence that previous trigger point
injections had resulted in any
improvement of the employee’s
condition.
Additionally, prior to settlement,
the physician who performed a
records review for the employer
questioned the existence of a work
relationship with employee’s back
symptoms due to a six month delay
in onset after the date of injury.
The Panel reversed and granted the
motion to compel an IME, because
the employer had a “good faith
reasonable basis for questioning
both the causation and the
necessity of the proposed
treatment and for filing a motion
for a physical examination of the
employee.” This case offers a way
to shake up “old dog” claims that
just won’t go away.
By: Roy Sparks
SOL-You Knew All Along…
In Mayton v. Wackenhut Services,
Inc., the Appeals Panel held that a
medical diagnosis is not necessary
to show that an employee had
knowledge that his condition was
work- related for statute of
limitation purposes. An employee's
knowledge is a question of fact that
can be shown by proof other than a
doctor's diagnosis and opinion as
to causation.
The employee developed COPD
while working as a security guard.
He was first diagnosed in August
2004 and was taken out of work
due to the condition in July 2005.
The employee alleged that no
physician told him his condition
was work-related until September
8, 2006. He filed a Request for
BRC on September 4, 2007.
The Court ruled that
commencement of the statutory
limitation period under T.C.A. S
50-6-306(a) is triggered by the
occurrence of 2 events: 1) when
the employee is incapacitated from
work as a result of the occupational
disease, and 2) when the employee
knows or should know that she has
an occupational disease which is
the cause of the incapacity to work.
Because the evidence showed that
the employee acknowledged that
he knew his condition was work-
related as of August 2006, the
statute of limitations barred his
claim for compensation. Take
away: be sure to ask repetitive
and occupational claimants when
they first knew their condition
was related to work.
By: Stacey Shelton
TPD-Concurrent Employment
Stem v. Thompson Services, Inc.,
involved a dispute regarding the
type and amount of temporary
benefits an employee working
two jobs was entitled to receive
following an injury at one of the
employee’s jobs. The work-
related injury required the
employee to discontinue his
manual labor job with the
employer although he continued
in his employment as a bus
driver.
Because he was unable to work
for an extended period under his
authorized treating physician’s
restrictions for the employer he
sought and was awarded
temporary total benefits for this
period from the trial court
despite his continued
employment as a bus driver
during the same period of time.
The award for temporary total
disability benefits was reversed.
The Panel concluded that
temporary total disability
benefits are only appropriate
when the employee is “wholly
disabled and unable by reason of
his injury to work.” Despite the
disparity in the physical demands
and earning capacity available
between the employee’s two
jobs, the fact that he was able to
work at all disqualified him from

4. TN Workers Comp Chronicle Page 4 of 4
This is a legal advertisement.
The articles are intended to
MIJS is a value oriented law firm focused on
providing customized solutions for our clients.
Based in Marietta, GA, MIJS offers a full
spectrum of legal services ranging from
general liability to transactional tax planning.
Our Tennessee offices specialize in workers’
compensation defense allowing us to
aggressively minimize the overall expenses of
About Moore Ingram Johnson & Steele…
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Knoxville, TN 37923
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claims. By leveraging the experience of 18 comp
attorneys, we help employers and insurers
navigate Tennessee’s workers’ compensation
system with an eye towards cutting costs.
We are pleased to announce the opening of our
Louisville, KY office. Please contact Troy Hart to
see how MIJS can help you meet your workers’
comp goals.
Advisory Council Releases New Statistics
This is a legal advertisement. The articles are intended to provide background and general guidance to the TN
workers’ comp system. They are not intended as legal advice as each lawsuit is unique and requires specific
analysis. Please contact MIJS to discuss the details of your claim.
temporary total disability
benefits. Rather, the employee
was only entitled to temporary
partial disability benefits for the
period of his inability to work for
Thompson Services.
He was entitled to an amount
equal to two-thirds of the
difference between the average
weekly wage of the worker at the
time of the injury and the wage
he was able to earn in his
partially disabled condition. The
matter was remanded to the trial
court to determine this amount.
Take away: TPD can be tricky.
So when you have a claimant
with concurrent employment, be
sure to get proof of any other
wages the employee is earning.
By: Ryan Edens
A recent report published by the Tennessee Workers’ Compensation Advisory
Council analyzed claims data from the past decade. The figures are derived from
statistical data forms that are filed along with every workers’ compensation specialist.
The report reached the following conclusions:
1) The average duration of a claim from injury to conclusion is 88.1 weeks.
2) Settlements in which complaints are filed took an average of 85 weeks after
MMI. This is more than twice the time it took in 2009 and 10 to 20 weeks
longer than prior years.
3) Over the past ten years, the average duration of TTD benefits has increased
from 18.3 to 26.2.
4) The statewide mean for medical benefits in 2010 was $21,796.64, the highest
average since the 2004 reforms.
5) Since 2004, the average PPD award for return to work body as a whole injuries
has decreased by $11,000.00.
The report shows that the reduction of the return to work cap multiplier from 2.5x
to 1.5x has reduced PPD awards. However, the reforms appear to have increased the
costs associated with temporary benefits and have not shortened the overall claims
process. The full report is available at:
http://treasury.tn.gov/claims/documents/2011StatReport2010Data.pdf