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TN Workers' Compensation Claims Harder on July 1, 2014

     Workers' Compensation claims in Tennessee for injuries such as hearing loss and carpal tunnel will become vastly more difficult after July 1, 2014.  As discussed previously, injuries arising out of or in the course and scope of employment in Tennessee on or after July 1, 2014 are going to be treated substantially different under the "reformed" Tennessee Workers' Compensation Act. An example of a substantive change, would be the definition of injury. Tennessee Code Annotated section 50-6-102 injury definition for accidents on or after July 1, 2014.

Testimony from Psychologists in TN Workers' Compensation Cases

     Often in workers' compensation claims, when the claim involves mental injuries, psychologists are offered by the insurance companies for treatment.  Psychologists are not entitled to give a finding of causation under the act. As the Supreme Court stated in its unreported decision Shelby v. Highways, Inc, 2003 Tenn. Lexis 413 (May 13,2003), "the trial court cannot base a finding of causation solely upon the opinion of a psychologist." Id. at *12 (citing Cigna Property & Cas. Ins. Co. v. Sneed, 772 S.W.2d 422 (Tenn. 1989». The Shelby Court indicated that the holding does not preclude inclusion of all of a psychologists' testimony, but does preclude the psychologist from making statements regarding causation of any given injury. It is well established jurisprudence in the state of Tennessee that causation may only be proven by medical expert testimony, and in Rapier v. Jones Blair Paint, 2002 Tenn. Lexis 428 (Sept. 27,2002), the plaintiffs even conceded that "a psychologist is not competent to render an opinion as to causation and permanency of an injury in workers' compensation cases." See also McCaleb v. Saturn Corp., 910 S.W.2d 412 (Tenn. 1994) and (Argonaut Ins. Co. v. Williams, 580 S.W.2d 784 (Tenn. 1979) (both holding that causation and permanency of injury must be established by expert medical testimony). Tennessee courts have clearly stated that "while a clinical psychologist may have valuable testimony to offer, such testimony is not competent in a workers' compensation case on the issues of causation or permanence of medical impairment." Skelton v. Robertshaw Controls Co., 1998 WL 740855 (Tenn. Workers Compo Panel Oct. 26, 1998). Further, the Tennessee Supreme Court in Freemon V. VF Corp, Kay Windsor Div., 675 S.W.2d 710 (1984) expressly held that a psychologist was not a medical doctor and was not qualified to establish permanence in a workers compensation case.

Pre-Existing Conditions and Tennessee Workers' Compensation

     Sometimes in workers' compensation claims, the injured worker has pre-existing problems or conditions.  Often the employer or workers' compensation insurance company will deny the claim based on those pre-existing conditions or illnesses.  An employer cannot escape liability when an employee, upon suffering a work-related injury, incurs disability far greater than if the employee had not had pre-existing medical conditions. Kellerman v. Food Lion, Inc., 929 S.W.2d 333, 335 (Tenn. 1992); Rogers v. Shaw, 813 S.W.2d 397 (Tenn. 1991).

Tony Farmer Works on Workers' Compensation Bill

     The administration bill dealing with workers' compensation was amended and passed last night to add an escape clause back into the bill. This is due to the negotiations and hard work of Tony Farmer and others.  

Workers' Compensation and Medical Malpractice

     What happens if an injured employee in a workers' compensation case is further injured by a treating doctor?  In determining who qualifies as a third-party, it is perhaps best to look at an umbrella rule of thumb and then examine examples and exceptions to the rule. A third-party eligible to be sued by an injured worker is one who is unconnected to the injured worker's employer whose negligent actions give rise to the worker's injuries or who cause further exacerbation or aggravation of the injuries. A doctor or hospital can be a third-party when an injured worker who has suffered an additional injury or disability due to medical malpractice while being treated for a work-related injury. Erwin v. Travelers Prop. Cas. Co. of Am., 2012 LEXIS 406 (Tenn. Ct. App. 2010). However, a hospital cannot be sued for malpractice when the injured worker is an employee of the hospital despite the argument of the "dual capacity doctrine." Tennessee has not allowed an employer to be sued in tort even though the employer may have been acting in a "dual capacity." In McAlister v. Methodist Hosp. of Memphis, 550 S.W.2d 240 (Tenn. 1977), the Court held:

Keep Good Records after Car Accidents

     People involved in car accidents or other motor vehicle accidents are well served to keep records of everything related to the accident. Document, save and organize everything that comes into your hands involving the accident. You do not necessarily know what is important until you need it and do not have it or cannot find it.

Car Accidents and Preservation of Evidence at the Scene

     Persons involved in car accidents should take certain steps to preserve physical evidence. "The items of physical evidence are the silent sentinels of the truth." The scene of an accident is fluid. Its physical characteristics will change and the physical evidence will disappear quickly. Will the snow and ice that covered the roadway be there tomorrow? Will the rain wash away the skid marks? How soon will the authorities clear the debris? If you have a camera in your car, take pictures. If not, have someone come to the scene and bring a camera. If this is not feasible, return to the scene as soon as possible and take photographs. It is better to have someone with you when the photographs are taken so that the photographs may be authenticated by a corroborating witness.

Witnesses and Car Accidents

     When car accidents occur, it is very important to get information about and from all available witnesses.  Obtain the full names, complete addresses, places of employment and current telephone numbers of all witnesses. Particularly in accidents appearing to involve only minor damage, the witnesses leave after the police officer arrives and the police officer may not obtain vital information concerning the witnesses. Remember that under Tennessee Law a person has one year in which to file a lawsuit for bodily injury and three years in which to file a lawsuit for property damage. Tennessee Code Annotated §§ 28-3-104 and 105. It is unfortunately not unusual for a person to file a lawsuit against you very near the end of the applicable one or three year period. Ask the lawyers, there are innumerable instances when it appears that the property damage is so slight that there is no reasonable anticipation that a lawsuit will be filed but nonetheless a lawsuit is filed and is filed just as the applicable statute of limitation is about to end. Once the witnesses are away from the scene, it will be almost impossible for you to locate and identify them if you have not obtained their vital information.

After Car Accidents Contact the Authorities

     People involved in car accidents often make the mistake of not calling the police!  If you are involved in a car accident, contact the police or other authorities even if the damage seems minor.  The duty to inform law enforcement of an accident and a driver's duties generally when an accident occurs (T.C.A. § 55-6-101-116) apply to accidents, "occurring upon highways and the premises of any shopping center, trailer park or any apartment house complex, or any other premises which are generally frequented by the public at large."

What is an EEOICPA Special Exposure Cohort?

     In 2000 the U.S. Congress passed the EEOICPA, and provided for a Special Exposure Cohort (SEC) workers in certain plants (at the time it was only gaseous diffusion plants in Oak Ridge Tennessee, Portsmouth Ohio, and Paducah Kentucky, but X-10 or ORNL has now been added). The significance of the SEC designation is that an employee, or survivor of an employee, who worked at one of the designated SEC sites, for at least 250 working days, and has been diagnosed with at least one of the 22 specified cancers, is assumed to have contracted that cancer from radiation exposure during the performance of work at the SEC site. Employees, and their survivors, who are not members of an SEC, must have their radiation dose reconstructed to determine if radiation exposure was responsible for their cancer.

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