TENNESSEE BAR ASSOCIATION SUGGESTIONS REGARDING WORKERS' COMPENSATION REFORM MARCH 18, 2004 After careful consideration, the TBA Special Committee Workers' Compensation, with the concurrence of the TBA Executive Committee,  presents the following legislative recommendations. The following ideas will help improve the workers' compensation system, protect injured workers and save costs.   1. The Benefit Review Conference process and specialist program do not function as well as intended. We recommend that the Benefit Review Conference process be strengthened and made mandatory and that more training and oversight be implemented in the  specialist program. We recommend an evaluation of the specialist program to determine that it has the authority, training and staffing to implement the program as it exists and to determine if the program has the most appropriate oversight.  Finally, when a Benefit Review Conference is requested, dates provided by the Department for the conference must include three dates which fall within forty-five days of the date the request is made. 2. Amend 50-6-241(a)(2), which concerns reconsideration of industrial disability,  to shorten the time period from 400 weeks, from the day the employee returned to work, to four years, in which an employee, who is no longer employed by the pre-injury employer, may bring a new cause of action for reconsideration of industrial disability, which must be brought within one year of the employee's loss of employment.   Add language to 50-6-241 (a)(2) which would allow reconsideration in "all cases except where the employee is no longer employed due to a seasonal layoff, voluntary retirement from the workforce,  or one of the following circumstances:  the employee's willful misconduct, the employee's intentional self-inflicted injury, the employee's intoxication or use of illegal drugs, the employee's willful failure or refusal to use a safety appliance or the employee's willful failure to perform a duty required by law."    This change may result in cost savings for insurance and business by shortening  the time period from 400 weeks to four years in which an injured worker can ask for reconsideration of a prior award.  The reconsideration suit would still have to be brought within a year from the date of job loss.    The change will also help injured workers.  This provision was originally intended to protect against job loss for any reason, but some courts have interpreted it to apply only if the job loss is related to the injury.  An injured worker should be able to have their award reconsidered, if they lose their job,  for any reason other than misconduct or retirement.   The change makes it clear that reconsideration would be available where a worker lost his job due to a plant closing but not a seasonal layoff. Draft language to implement this suggestion is found below. 3.  Amend 50-6-241(a)(1) to make it applicable to permanent partial disability benefits received pursuant to 50-6-207(3)(A)(ii)(m),(o),(p),(s)-(ff). This makes the "2 1/2 times cap," which currently applies only to "body as a whole" injuries apply to all scheduled member injuries where the benefit is 200 weeks or more.  This is one of the much discussed areas where many think reform is needed.  This would effect injuries such as bilateral carpal tunnel syndrome where the employee returns to pre injury employment at the same wage. 4.  Amend 50-6-241(a)(2) to make it applicable to permanent partial disability benefits received pursuant to 50-6-207(3)(A)(ii)(m),(o),(p),(s)-(ff). This would make the reconsideration statute (discussed in item 2) apply to all scheduled member injuries where the award is 200 weeks of benefits or more (discussed in item 3).   5.  Put into place a medical fee schedule on July 1, 2005.  The Commissioner of Labor and Work Force Development would be directed to recommend the medical fee schedule in consultation with the Workers' Compensation Advisory Council.  The goal of the fee schedule will be to keep the rate of growth in medical payments in workers' compensation cases at the rate of regular inflation and continue to provide quality medical care to injured workers.  The TBA  believes that the exact administrative structure is not as important as the requirement to contain the growth in costs to a specific level. The Advisory Council seems like a logical choice because it is called upon to review and make recommendations on a number of things, such as legislation, loss costs filings, and can balance the cost with the need for adequate medical care .   6.  Timely payment of benefits has been mentioned repeatedly by critics of the current system.  Laws in this area appear to be sufficient, but stricter enforcement of current penalty provision, including those in Tenn. Code Ann. 50-6-118, 50-6-205, 50-6-225, and 50-6-238,  is needed.  7.  Amend Tenn. Code Ann. 50-6-123 to eliminate mandatory case management, making case management voluntary.   This will allow employers and insurance carriers to determine if the expense (reported to be $20 million in the last two years) is justified, if so, it can be done voluntarily.  The following is draft language to implement the reconsideration changes suggested in item 2 . The statute, 50-6-241 (a)(2), currently reads: (2) In accordance with this section, the courts may reconsider, upon the filing of a new cause of action, the issue of industrial disability.  Such reconsideration shall examine all pertinent factors, including lay and expert testimony, employee's age, education, skills and training, local job opportunities, and capacity to work at types of employment available in claimant's disabled condition.  Such reconsideration may be made in appropriate cases where the employee is no longer employed by the pre-injury employer and makes application to the appropriate court within one (1) year of the employee's loss of employment, if such loss of employment is within four hundred (400) weeks of the day the employee returned to work.  In enlarging a previous award, the court must give the employer credit for prior benefits paid to the employee in permanent partial disability benefits, and any new award remains subject to the maximum established in subsection (b). TBA's proposal would amend 50-6-241(a)(2) to read as follows (changes in bold): (2) In accordance with this section, the courts may reconsider, upon the filing of a new cause of action, the issue of industrial disability.  Such reconsideration shall examine all pertinent factors, including lay and expert testimony, employee's age, education, skills and training, local job opportunities, and capacity to work at types of employment available in claimant's disabled condition.  Such reconsideration may be made in appropriate cases where the employee is no longer employed by the pre-injury employer and makes application to the appropriate court within one (1) year of the employee's loss of employment, if such loss of employment is within four years of the day the employee returned to work.  Reconsideration shall be allowed in all cases where the employee is no longer employed except when the loss of employment is due to a seasonal layoff, the employee's voluntary retirement from the workforce,  or one of the following circumstances:  the employee's willful misconduct, the employee's intentional self-inflicted injury, the employee's intoxication or use of illegal drugs, the employee's willful failure or refusal to use a safety appliance or the employee's willful failure or refusal to perform a duty required by law.  In enlarging a previous award, the court must give the employer credit for prior benefits paid to the employee in permanent partial disability benefits, and any new award remains subject to the maximum established in subsection (b).