Effective January 1, 2018, the mileage reimbursement rate for Alabama is 54.5 cents per mile, a one cent increase from 2017.

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About the Author

This blog submission was prepared by Ashleigh Hunnicutt, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Ashleigh by e-mailing her at ahunnicutt@fishnelson.com or by calling her directly at 205-271-7626.

Ombudsmen Patricia Fraley and Ted Roose plan to continue to keep regular office hours on the 2nd and 4th Tuesdays of every month from 9-12 and 1-4 for anyone who wants to submit a settlement for their review. There is no need to make an appointment for these times, just drop by and sign in.  The new Career Center located at 3216 4th Avenue South (Birmingham).

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About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

Can a Judge of Compensation order a respondent to pay temporary disability benefits without a motion being filed in the first place?  The answer is no according to the decision in Munch v. Atlantic Health System, A-1265-16T1 (App. Div. December 21, 2017).

Petitioner, Dana Munch, worked as a paramedic for Atlantic Health System (AHS) and witnessed the death of a child during the course of her employment on October 12, 2014. She received authorized treatment and temporary disability benefits from November 14, 2014 to January 14, 2015.  She then returned to work.

On June 18, 2015 petitioner had a hand injury at work and received temporary disability benefits from June 22, 2015 through April 21, 2016.  During this period of time she began treating with Dr. Nayak, a psychologist, for a psychiatric reaction to the October 12, 2014 incident noted above.  Dr. Nayak treated petitioner from January 2016 through June 2016.

A key fact in this case is that petitioner failed to return to work in June 2016 and was therefore terminated.

On August 16, 2016, petitioner filed a claim petition for psychiatric injuries related to the incident on October 12, 2014.  AHS accepted the case as compensable.  Petitioner did not request temporary disability benefits, nor did she file a motion for temporary disability benefits.

The first listing of the case occurred on November 2, 2016.  Counsel for petitioner presented the Judge of Compensation with a report from Dr. Nayak, the psychologist, dated October 28, 2016.  The doctor said that petitioner suffered from post traumatic stress disorder related to the October 12, 2014 incident.  He added, “Ms. Munch has not been able to return to work for the duration of time that I have been treating her since January 18, 2016.  Furthermore, I believe within a reasonable degree of probability based on my expertise as a clinical psychologist that in Ms. Munch’s current psychological state she will not be able to return to her old job as a paramedic at the present time.”

After reading this letter, the Judge of Compenstion indicated that he was inclined to enter an order for payment of temporary disability benefits.  Capehart Scatchard represented AHS and argued that there had been no motion filed and no request for temporary disability benefits from petitioner.  Further, defense counsel argued that petitioner had no job and therefore no wage loss to replace.  Moreover, counsel argued that Dr. Nayak failed to explain why petitioner was able to return to work after the October 12, 2014 incident up until June 2015 when she injured her hand but now could not work.

The Judge of Compensation allowed oral arguments on the issue of temporary disability benefits at the same first court listing but denied a request by AHS for a three week adjournment.    The Judge then entered an order for temporary disability benefits without requiring a motion for medical and temporary disability benefits to be filed. AHS appealed.

The Appellate Division reviewed the administrative rules that require a motion to be filed for an order to be entered for temporary disability benefits.  The Court said, “Petitioner did not undertake any of the steps pursuant to N.J.A.C. 12:235-3.2 to support an award of temporary disability benefits.  Thus, Atlantic had no opportunity to respond to or oppose an award of benefits.”  The Court added, “The Workers’ Compensation judge did not afford Atlantic an opportunity to challenge the legal or factual basis for awarding benefits to petitioner despite Atlantic’s request for a brief adjournment to submit such opposition.  Moreover, there were no depositions, sworn statement, or documentary evidence (other than Dr. Nayak’s letter) submitted in support of petitioner’s claim.”

The court then cited the basic principle in law regarding due process. “In accordance with due process principles, the opportunity to be heard, ‘includes not only the right to cross-examine the adversary’s witnesses but also the right to present witnesses to refute the adversary’s evidence.’”  Paco v. Am. Leather Mfg. Co., 213 N.J. Super. 90, 97 (App. Div. 1986).

While the technical rules of evidence may be relaxed in workers’ compensation proceedings, they may not be relaxed to the point of infringing on the parties’ due process rights or other fundamental rights. Id.At 95-96.  Atlantic was not given the opportunity to proffer any medical records or reports, call witnesses, or submit any evidence in opposition to petitioner’s claim.  Based on the foregoing, we find that Atlantic was denied a meaningful opportunity to be heard in accordance with the due process principles.

The Appellate Division also concluded that the rule applied in Cunningham v. Atl. States Cast Iron Pipe Co., 386 N.J. Super. 423, 432 (App. Div. 2006) requiring claimants to prove that they were both available and willing to work and would have been working if not for the disability.  The Court noted that petitioner had been terminated well before the order was entered in the first listing of the case.  The Court also observed that petitioner had in fact returned to work for six months after the October 12, 2014 incident, a fact which Dr. Nayak seemed unaware of.  Further, the petitioner herself never sought temporary disability benefits nor filed  a motion for benefits.  The first time there was any mention of petitioner requiring temporary disability benefits was when her attorney produced the report from Dr. Nayak in court, several months after petitioner had been terminated for not returning to work.

Dr. Nayak’s letter did not address petitioner’s ability to work in a different capacity or perform light duty assignments.  Dr. Nayak did not testify before the Workers’ Compensation judge or provide an affidavit in support of petitioner’s claimed disability.  Dr. Nayak’s letter does not explain how petitioner was able to return to work for six months after the October 2014 incident but was unable to return to work in June 2016.  More importantly, petitioner did not testify or present evidence that she suffered a wage loss as a result of her disability because she was available and willing to work and would have been working if not for the disability.

 The Appellate Division concluded that the petitioner failed to demonstrate any entitlement to temporary disability benefits.  Therefore the Court reversed the decision of the Judge of Compensation.   This case is significant because it emphasizes how important it is to allow due process to the parties in a workers’ compensation claim.  Further, it underscores the solid principles outlined in the Cunningham case.

This case was successfully handled by the Capehart team of Stephen Fannon, Esq. and John Pszwaro, Esq., who successfully argued before the Appellate Division.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

After decades of confusion over the issue of paying temporary disability benefits to volunteer firefighters who have no outside jobs, practitioners finally received an answer from the Appellate Division in Kocanowski v. Township of Bridgewater, A-3306-15T2, (App. Div. December 11, 2017).

The case involved a volunteer firefighter with the Finderne Fire Engine Company in Bridgewater Township.  Petitioner was responding with her company to a multi-alarm fire in March 2015 when she slipped and fell on ice, breaking her right fibula. The injury led to several surgeries over the next year.  Petitioner had not worked since 2013 when she began taking care of her father, who had serious health problems. In 2014, she resumed working as a volunteer firefighter in an unpaid capacity.

Petitioner filed a motion for medical and temporary disability benefits.  She asserted that she was entitled to temporary disability benefits at maximum rates under N.J.S.A.34:15-75. The Township argued that no temporary disability benefits were required because petitioner really had no wage loss. She had not worked since 2013.  The Judge of Compensation ruled for respondent, and petitioner appealed.

The Appellate Division methodically explained why the Judge of Compensation was correct in dismissing the claim for temporary disability benefits.  First, the Court cited to N.J.S.A. 34:15-38, which states that temporary disability benefits are due the day that the employee is first unable to continue at work by reason of the accident.  Petitioner argued that Section 75 creates a different right for volunteer firefighters because it states that compensation for any volunteer fireman must be based upon a weekly salary or compensation that is conclusively presumed to be the maximum allowed under the New Jersey Workers’ Compensation Act.

The Court agreed with respondent that there must first be proof of a wage loss before Section 75 is referenced.

Kocanowski’s claim is at odds with the underlying reason for awarding temporary disability, which is to replace lost wages.  It is at odds with the method for calculating temporary disability, which is to consider weekly wages.  When the legislature enacted the provisions that addressed firefighters and others, it did not make any special provisions for calculating temporary disability in a different way.

The Court ruled as follows:  “We agree with the compensation judge that although a volunteer firefighter is entitled to temporary benefits at the maximum rate and that the seven-day waiting period does not need to be served, there first must be an entitlement by the volunteer to payment of temporary disability benefits.  That payment depends of proof of lost wages.”  In other words, one does not get to  the maximum benefit rate contained in Section 75 unless the volunteer can prove an entitlement to temporary disability benefits.

This case was expertly handled by Jennifer A. Cottell, Esq. of Cooper, Cottell & Taylor, LLC.  Ms. Cottell not only won the case at the Division level and on appeal but she successfully defeated an amicus brief filed by COSH on behalf of the petitioner.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

New Jersey law has very strict procedures for workers’ compensation carriers to follow in subrogation, and failure to comply with those strict rules can mean loss of subrogation rights, as noted in Pino v. Polanco and New Jersey Manufacturers, A-5027-15T4 (App. Div. November 22, 2017).

Ms. Pino was injured in a work-related car accident on May 20, 2011.  Another vehicle driven by an uninsured driver, Polanco, struck Pino’s vehicle.   Pino had uninsured motorist coverage with NJM.  Hartford paid workers’ compensation benefits totaling $48,056.79 for medical and temporary disability benefits.  The Hartford subrogation representative sent a letter to Pino’s attorney dated December 5, 2011 advising counsel of its subrogation rights under N.J.S.A. 34:15-40.  The letter asked that Pino notify Hartford if she was not going to proceed with a third-party claim.

In April 2013, Pino filed a personal injury action against Polanco and later amended the complaint to name NJM as a direct defendant under the uninsured motorist policy.  The parties eventually decided to arbitrate their dispute and entered into a “Stipulation of Dismissal Without Prejudice Subject to Reinstatement” of the law suit.   The arbitrators awarded Pino $65,000 subject to the workers’ compensation medical lien.  NJM rejected the arbitration and sought a jury trial, believing that Pino could not get past the verbal threshold and would likely lose.

Ultimately Pino chose not to reinstate the Law Division case, which meant no recovery at all.  But The Hartford did not know this.  There was a long gap in time between the arbitration in July 2015 and the point in time when The Hartford finally learned about the ultimate outcome of the UM matter on January 26, 2016.  Once The Hartford found out, it quickly filed a motion days to set aside the dismissal without prejudice and reinstate its complaint against NJM.  That motion was filed well past 90 days from the dismissal without prejudice in 2014 but within 90 days from when The Hartford found out about the dismissal and decision not to pursue the matter.  The trial judge rejected The Hartford’s motion based on an obscure provision contained in N.J.S.A. 34:15-40(f).  That provision states:

Where an injured employee or his dependents have instituted proceedings for recovery of damages for his injuries and loss against a third person and such proceedings are dismissed for lack of prosecution, the employer or insurance carrier shall, upon application made within 90 days thereafter, be entitled to have such dismissal set aside, and to continue the prosecution of such proceedings in the name of the injured employee or dependents in accordance with the provisions of this section.

The Hartford appealed and argued that the 90 days should start from when the company learned that the UM matter had been dismissed.  NJM argued that the statute says 90 days from the dismissal for lack of prosecution.  The Appellate Division contemplated that one reason for the 90-day rule is undoubtedly to foster expeditious resolution of subrogation claims.  There are no reported decisions on this particular issue, as noted by the Court.

The Appellate Division was not sure that a dismissal for “lack of prosecution” mentioned in the statute fit precisely the “dismissal without prejudice” in this matter, but it said that the statute says what it says, and it does not have a provision for a “knowledge requirement.”  The Court explained, “We share the trial court’s observation in its oral ruling that perhaps Pino or her attorney should have advised The Hartford of the June 2014 dismissal of the UM case sooner, consistent with the request that The Hartford had made in December 2011 to be kept advised of the matter’s status.  However, we are aware of no authority that imposes a legal duty upon an employee or her personal injury attorney to supply such notice.”

The Court went on to state that the record did not disclose proof that The Hartford regularly followed up with Pino or her counsel about the status of the third party recovery following the December 5, 2011 letter.  The Court seemed to be laying some blame on The Hartford for not being more diligent.  While this case involves a very rare problem in the law, it is interesting to read in that the Court favored a very technical study of the obligations under N.J.S.A. 34:15-40.   It is precisely for situations like this that subrogation representatives must vigorously follow up on the status of third party law suits and arbitrations.  There is never too much diligence in keeping tabs on third party law suits.

Thanks to Ron Siegel, Esq. for bringing another important case to our attention.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.

Many police officers work outside assignments that are approved through their police department.  What happens if an injury occurs to the officer in the approved outside assignment?  What are the ramifications for workers’ compensation and civil liability purposes?  This issue arose in Dutcher v. Pedro Pedeiro and Black Rock Enterprises, LLC., A-1088-16T3 (App. Div. October 25, 2017).

Black Rock Enterprises approached the Township of Woodbridge Police Department for permission to hire police officers for traffic control while its workers performed a road milling project in town.   The Company specified how many police officers would be required for the job and paid the Township for their services.  The Township assigned the police officers and then in turn paid them directly.  Officer Dutcher, the plaintiff in this case, was approved by the Township to do work for Black Rock Enterprises.  The company assigned him to a specific intersection of Woodbridge Center Drive and Plaza Drive.

On the day of the accident, Dutcher reported to the site, and was instructed by the company on his duties.  He followed all the construction company’s policies.  Dutcher reported to the company’s supervisor, which had control over his work.  The company directed Dutcher in how to direct traffic, depending on the progress and status of the milling work.  The Township had no authority over Dutcher’s duties at the work site.  The company also had the power to discontinue Dutcher’s services if his work was unsatisfactory.

Dutcher was injured when a vehicle driven by Pedeiro, an employee of the construction company, struck him while performing his traffic control work.  Dutcher received workers’ compensation benefits from the Central Jersey Joint Insurance Fund, of which Woodbridge Township was a member.  Dutcher also attempted to sue the construction company for negligence.   The Central Jersey Joint Insurance Fund took the position that Dutcher had two employers, and that Black Rock Enterprises was equally responsible for the workers’ compensation claim.

The trial judge ruled that Dutcher was a special employee of the construction company and therefore could not sue the construction company.   The Appellate Division agreed stating that “a ‘special employment relationship’ where the ‘special employer’ is also responsible for workers’ compensation exists ‘when a general employer lends an employee to a special employer.’”

There are five factors to consider in establishing a special employment relationship.  First, the Court noted that there must be consent for contracting:  “Here, plaintiff signed up for the Extra Duty Services knowing the Township would hire him out to a second employer and would expect him to perform his duties for that employer.” Consent was therefore established.

Second, the Court said that the work being done must be essentially that of the second employer.  That was easy to show because the construction company specified how many officers it needed and the date, time and location of the work.   The company specified the requirements of the job, and traffic safety was essential for the safety of the construction workers.

The most significant factor is the third, namely the right of control.  The Court said it was clear that the construction company controlled Dutcher’s activities, as it could direct his work and get rid of him if it wanted to do so.  There was a foreman on the site in control of the operation.

The fourth factor involved payment by the construction company to Dutcher.  The Court said that it really amounted to the same thing when the company paid the Township, which in turn paid Dutcher.

The fifth factor pertained to the right of the company to hire or discharge the special employee.  Even though the company did not hire Dutcher personally (the Township assigned him), the company clearly had a right to dispense with Dutcher’s services if it wanted to do so.

For all these reasons, the Appellate Division held that Dutcher could not sue the construction company, as Black Rock Enterprises was his special employer.  New Jersey has a powerful exclusive remedy provision which states that an employee cannot sue his or her own employer for personal injuries in a civil action except in truly rare cases of intentional harm.

This case follows prior case law on this issue.  There are many joint employer and special employee situations in New Jersey.  Where the parties to the joint employment or special employment relationship have not clearly established liability for workers’ compensation, a Judge of Compensation has the power to assess responsibility for workers’ compensation equally between the employers.  The issue in this case focused more heavily on the corollary principle, which is that the injured worker cannot sue either company in a joint or special employee situation.

It makes good sense for employers like police departments, which routinely assign officers to outside companies for approved work, to get written agreements signed in advance regarding the responsibility of the special employer to pay for workers’ compensation injuries.  Most employers who request police officers or special employees do not realize that they are responsible for workers’ compensation injuries in whole or in part.  That leads to unnecessary and expensive litigation.  The easy solution is to address this issue right up front.

Thanks to Ron Siegel, Esq. for bringing this appellate division decision to our attention.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

December 2017

Tennessee Workers’ Compensation Update

The Tennessee Workers’ Compensation Law underwent sweeping changes in 2014, including a new formula for permanent disability, a new administrative court system, and a new causation standard. Since then, the Tennessee legislature, the Tennessee Bureau of Workers’ Compensation, and the new administrative court system have been busy fleshing out the new system. Indeed, 2017 brought several critical changes to the Tennessee Workers’ Compensation Law.

I.                 2017 Legislative Changes by Tennessee General Assembly

We will begin our review of the 2017 revisions by focusing on the actions of the Tennessee General Assembly.

With regard to medical panels, the basic rule is that employers must provide to the injured worker a panel of three or more independent physicians, surgeons, chiropractors, or specialty practice groups, if available in the employee’s community, from which the employee may choose the authorized treating physician. The 2017 changes impact situations in which there are not three or more independent physicians, surgeons, chiropractors or specialty practice groups available in the employee’s community.  In such circumstances, medical panels must now contain three or more independent providers or specialty practice groups not associated in practice together within a 125 mile radius of the employee’s community. In this context, the phrase “not associated in practice together” means that at least one provider or specialty practice group is not associated in practice with another provider or specialty practice that is on the panel. Essentially, where there are not three or more options in the local community, and an employer is expanding beyond the usual range of the community, only two of the providers can be associated in practice.  At least one of the options on the panel must be independent of the other two. This will be particularly important for employers located in rural areas where the choices for medical providers is limited. This change was effective May 18, 2017.

Another important legislative change is the creation of a vocational rehabilitation program within the Tennessee Bureau of Workers’ Compensation. Specifically, the “Second Injury Fund” has been renamed the “Subsequent Injury and Vocational Recovery Fund.”  The Fund now has a new responsibility to determine the appropriateness of applications for vocational recovery assistance and to pay out such benefits.  Vocational recovery assistance may include vocational assessments, employment training, job analysis, vocational testing, GED classes and testing, and education through a public Tennessee community college, university, or college of applied technology, including books and materials. Assistance is capped at $5,000.00 per employee per fiscal year and must not exceed the total sum of $20,000.00 per employee who participates in this program for all years.  The total aggregate amount to be paid from the Subsequent Injury and Vocational Recovery Fund is limited to a total of $500,000.00 in any calendar year. This new vocational recovery assistance is applicable only to injuries occurring on or after July 1, 2018, and a sunset provision prohibits it from applying to injuries on or after June 30, 2021.  

The Tennessee legislature also made a small but important change for death benefits. Under prior law, recoverable burial expenses were capped at $7,500.00. Under the new law, the cap has now been increased to $10,000.00 – an adjustment to reflect the ever-increasing costs for funerals. This change was effective May 18, 2017.

The recent legislative changes further alter the utilization review system.  Employers are now restricted from sending certain medical recommendations to utilization review in the early days of a workers’ compensation claim. For instance, utilization review may not be used for diagnostic procedures ordered in accordance with the Medical Treatment Guidelines by the authorized treating physician within the first 30 days after the date of injury. Likewise, utilization review may not be used for diagnostic studies recommended by the treating physician when the initial treatment regimen is nonsurgical, no diagnostic testing has been completed, and the employee has not returned to work. The clear intent of these two provisions is to prevent medical treatment at the outset of the claim from being hindered by what the legislature views as unnecessary disputes over medical necessity. This change was effective May 18, 2017.

II.                New Regulations Enacted by Tennessee Bureau of Workers’ Compensation

In 2017, the Bureau of Workers’ Compensation was quite active updating several sets of workers’ compensation regulations.

For instance, the regulations governing utilization review were amended in January 2017. For the most part, the time requirements of a utilization review have remained unchanged. An employer shall submit a case for utilization review within three business days of the notification of recommended treatment.  Once sent, the utilization review organization must render a determination about medical necessity within seven business days of receipt. However, a regulatory change for 2017 provides that a utilization review decision to deny a recommended treatment shall remain effective only for a period of six months from the date of the decision without further action by the employer. Thus, any requests that come from the treating physician with regard to the same type of treatment remain prohibited under that initial utilization review denial for a period of six months.  However, there can be circumstances in which the treating physician documents some material change that supports a new review or other pertinent information that was not used by the utilization review organization in making its initial determination. The new regulations also clarify that treatment recommendations shall not be denied if they follow the Bureau’s adopted Medical Treatment Guidelines.

Another important set of regulatory changes from June 2017 involved the implementation of new procedures for penalty assessments and contested hearings. The new regulations clarify that a Bureau employee may accept information concerning possible non-compliance or a possible rule violation from another Bureau employee, from within the Bureau, from within the Department of Labor, from other governmental agencies, through an investigation or inspection, from governmental records, or from any lawful source. Unsurprisingly, this represents a great expansion of the possible sources where a penalty referral can originate. The new regulations also outline a comprehensive and detailed procedure for the initiation, investigation, hearing, and appeal of penalty assessments. While an in-depth discussion of these new procedures is not appropriate for this article, a definite conclusion may be drawn from the fact that the Bureau has invested so much time and energy in building this procedural structure – namely, that employers and carriers should brace up for the ramped up assessment of penalties in 2018 and beyond.

III.              New Cases from the Administrative Court System

Our third source of updates for the Tennessee Workers’ Compensation Law is the administrative court system. Since their creation in 2014, the Court of Workers’ Compensation Claims and the Workers’ Compensation Appeals Board have been busy.

One place where the courts have been focusing their attention is penalties. For instance, inBerdnik v. Fairfield Glade Community Club, the Workers’ Compensation Appeals Board referred the employer to the Penalty Program for determination of whether a penalty was appropriate for the failure to provide a medical panel.  Likewise, inJohnson v. Stanley Convergent Security Systems, a single Appeals Board judge in a concurring opinion referred the employer to the Penalty Program for investigation of Employer's actions in failing to provide Employee a panel of physicians.  Interestingly, in both cases, the employers were referred to the Penalty Program despite prevailing on the issue of whether substantive workers’ compensation benefits were owed. Again, this sends a clear message to employers that in 2018 the Bureau may heighten its enforcement efforts for the many potential penalties that exist under the Tennessee Workers’ Compensation Law.

The Appeals Board also addressed an interesting application of the Recreational Activity defense. InPope v. Nebco of Cleveland Inc., a car salesman injured his knee participating in a “mud run,” which was a recreational charity event sponsored in part by his employer, a car dealership. The employee argued that his participation was “impliedly required” by the employer, due to pressure from a co-worker and general manager. The Appeals Board rejected this argument, reasoning that although the employee may have felt peer pressure to participate, such pressure does not by itself amount to an express or implied requirement to participate. The employee also argued that participation in the event was during working hours and part of his work duties. The Appeals Board also disagreed with this argument. While the mud run did occur during normal working hours, the employee was not paid for his time away from the dealership, he was not required to sell any cars while there, and he was not required to wear any clothing to identify him as an employee of the dealership. Based on these facts, the injury was found to be not compensable.

IV.              Conclusion

While 2017 did not bring any radical changes for Tennessee Workers’ Compensation Law, we did see several important additions and clarifications to the sweeping 2014 changes that are still in the process of unfolding. Stay tuned for more changes in 2018 as the system continues to evolve.

Fredrick R. Baker, Member
Wimberly Lawson Wright Daves & Jones, PLLC
1420 Neal Street, Suite 201
P.O. Box 655
Cookeville, TN 38503-0655
(931) 372-9123
fbaker@wimberlylawson.com
www.wimberlylawson.com

We must bid a sad farewell to Judge Carolyn Cheu Mobley, who retired from the Division of Workers’ Compensation on December 22, 2017.  As the sole Hearing Officer in Austin since 2010, Judge Mobley handled a heavy docket with courtesy and professionalism.  No word yet on what endeavors she will undertake following her departure from the DWC, but we certainly wish her well.  Judge Mobley’s replacement will be Judge Rabiat Ngbwa, heretofore one of three traveling Administrative Law Judges from the Division’s central office.

The 85^th Legislature amended the Act to change the title of the Division’s “Hearing Officers” to “Administrative Law Judges.” To implement the change, the Division is updating its forms to now refer to “Administrative Law Judges.” We recommend our clients consult the Division’s website to confirm they are using the most recent version of the form.