Allan F. Ramsaur, TBA Executive Director
(800) 899-6993 or (615) 277-3200
aramsaur@tnbar.org
March 25, 2004
TBA committee offers workers’ compensation changes
At the beginning of the legislative session, the TBA was asked to present suggestions for workers' compensation changes that might improve operation of the system, help workers and cut costs. That committee has now presented seven proposals for consideration.
TBA President John Tarpley set up the committee, appointing both plaintiffs' and defense attorneys from the TBA membership who specialize in this area of the law. Nashville attorney Jackie Dixon, the TBA's representative on the Workers' Compensation Advisory Council, led the group.
These suggestions, which have been approved by TBA leadership, reflect a consensus among committee members that incremental reform is preferable to some of the more radical and expensive proposals, which do not seem warranted by the evidence presented to the various committees studying the matter. Here are the committee’s proposals:
1. The committee feels that the benefit review conference process is not working as well as needed and recommends substantial improvement in training, staffing and oversight. Specifically, the committee recommends that when a benefit review conference is requested, three dates be proposed within 45 days rather than the current one within 30 days. The committee feels that this would give counsel a more reasonable chance to actually be able to set such a conference quickly rather than having to wait months and months because schedules could not be coordinated for the one day currently offered.
2. The committee recommends that the time for reconsideration of industrial disability be shortened from 400 weeks under current law to 4 years, but that such reconsideration would be possible if the worker lost his or her job for a much broader variety of reasons than current case law allows. This recommendation may reduce costs by limiting the time that a worker can have the decision reconsidered but also help workers by allowing them to make the request if the job was lost for almost any reason except retirement or misconduct.
3. The committee recommends that consideration be given to applying the cap or multiplier to scheduled member injuries as currently applies to injuries to the body as a whole. While still allowing flexibility to reflect real economic disability rather than just medical impairment, this proposal may limit the more extreme conversions of small impairments to very high disability ratings that have been cited anecdotally in testimony.
4. The committee suggests that the reconsideration statute be amended to include permanent partial disability benefits where scheduled member injuries are awarded 200 weeks of benefits or more.
5. The committee recommends that the Commissioner of Labor and Workforce Development adopt a medical fee schedule in consultation with the Workers' Compensation Advisory Council. The goal would be to continue to provide high quality medical care to injured workers and to limit cost escalation to the normal rate of inflation.
6. The committee calls for stricter enforcement of current statutory provisions regarding timely payment of benefits.
7. The committee recommends that mandatory case management be eliminated, making it voluntary. Companies that thought they could create cost savings could use it, while those who felt it was just an added expense could dispense with it.
The TBA has made it clear that it takes no position on whether change is needed or whether there is sufficient evidence to warrant changes, but that these suggestions have been developed to cause the least harm and have the greatest opportunity to improve the state’s system. The TBA will not be advocating these suggestions as a position or as a bill. In addition, the TBA has offered to analyze any proposals that do surface.
A complete copy of the committee’s proposals can be found at http://www.tba.org/legisflash/2004/TBA_workerscomp_2004.html
Further workers' compensation testimony
The Ad-Hoc Committee on Workers' Compensation met again Wednesday evening, hearing testimony from a Vanderbilt physician and two health care provider executives, among others. All stressed the need to assure quality medical care for injured workers in order to maximize their recovery and minimize the time they spent away from work.
They all felt that cutting medical fees very much would be a problem since they indicated that workers' comp cases are usually more difficult and time consuming than normal medical visits. Deep cuts would mean more cursory treatment and might cause physicians to refuse to treat injured workers.
The witnesses also spoke against the use of the court system for determining claims, at least initially. They felt that one of the greatest problems they had was uncertainty. Depending upon which judge hears a case, the results vary greatly, they said.
There was also testimony in opposition to the use of a cap or multiplier for injuries when a worker returned to work at the same job and at the same salary. The physician stressed the need to do everything possible to avoid injuries in the first place, noting that good safety programs are among the best ways to cut costs.
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Questions, comments? Contact TBA Legislative Counsel Steve Cobb at SAC@wallerlaw.com or TBA Executive Director Allan F. Ramsaur at aramsaur@tnbar.org
