NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
June 2024
Tennessee Workers’
Compensation Legislative Changes
The 2024 year brings the
following legislative updates to Tennessee Workers’ Compensation Law: Public
Chapter 532; Public Chapter 666; Public Chapter 0813; Public Chapter 492;
Public Chapter 498; and Public Chapter 499. These legislative changes range
from clarifications to filing First Reports of Injury, to extensions of the
Bureau of Workers’ Compensation’s authority to enforce laws.
The first of several updates in
recent Tennessee Workers’ Compensation Law finds its place in the Public
Chapter 532. This Bill was signed by Governor Lee on March 7, 2024, and becomes
effective on July 1, 2024. This Bill amends current Tennessee laws to make
a consistent, uniform period of 14 days for electronic filing for the First
Report of Injury to the Bureau of Workers’ Compensation (BWC), as well as
removing the Notice of Controversy form requirement – a filing is now made
electronically via Electronic Data Interchange (EDI). This Bill further
provides clarification that uninsured employers penalties apply to construction
and non-construction entities. Finally, this Bill extends the sunset of PC 189 (2021)
until July 1, 2029 – allowing the Bureau of Workers’ Compensation to
continue to enforce workers’ compensation insurance coverage laws.
Another legislative change is
Public Chapter 666. This Bill enacts the Tennessee Self-Insurers’ Guaranty
Association Act, creating the Tennessee Self-Insurers’ Guaranty Association – a
nonprofit, unincorporated legal entity. The purpose of this Act is to provide
for a streamlined and more efficient process for the payment of self-insured
workers’ compensation claims. It will also serve as an avenue for the
assessment of costs of the protection among those self-insured. This Bill was
signed by Governor Lee on April 9, 2024, and became effective upon signing.
The legislative updates continue
with Public Chapter 0813. This Bill requires the Comptroller of the Treasury
(COT) to conduct a study of all insurers – including insurance pools – that
provide policies of workers’ compensation coverage to local government
entities. This will include a review of solvency and a comparative rate study.
The Bill additionally requires the COT to report the findings to the Speaker of
the Senate and the House of Representatives by January 1. 2025. This was signed
by Governor Lee on April 29, 2024, and became effective immediately.
The final legislative updates for
2024 lie in Public Chapter 492, Public Chapter 498, and Public Chapter 499.
These, respectively, (1) extend the Bureau of Workers’ Compensation to June 30,
2029; (2) extend the Medical Advisory Committee to June 30, 2029; and (3)
extend the Medical Payment Committee to June 30, 2029.
Each of the preceding bills have
been signed by Governor Bill Lee, and are either effective July 1st,
or were effective upon their signing.
For any questions, please
contact:
Fredrick R. Baker, Member
Brendan Walsh, Associate
Wimberly Lawson Wright Daves
& Jones, PLLC
1420 Neal Street, Suite 201
P.O. Box 655
Cookeville, TN 38503-0655
Phone: 931-372-9123
Fax: 931-372-9181
fbaker@wimberlylawson.com
bwalsh@wimberlylawson.com
www.wimberlylawson.com
January 2024
Tennessee Courts Clarify
Notice Defense
In June of 2023, the
Workers’ Compensation Appeals Board (the “Board”) decided Ernstes v.
Printpack. The holding in this case resulted in a fundamental shift in the
understanding of the notice statute and defense penned in T.C.A. § 50-6-201. Confusion
arose surrounding the language in the statute regarding (1) failure to give
notice; and (2) defective notice. Ernstes was appealed, remanded, and
appealed again, before the Board clarified the issue. The Board’s decision was
upheld by the Supreme Court of Tennessee, Special Workers’ Compensation Appeals
Panel, on January 2, 2024.
The facts surrounding Ernstes
are quite simple: an employee worked for a company for thirty-three years,
where her job exposed her to loud noises; the employee retired and noticed
issues with her hearing; the employee saw a physician who determined that she suffered
from substantial hearing loss; the following year, the employee, while sitting
with her husband’s workers’ compensation attorney for a hearing loss issue,
connected the dots; the employee notified the employer and filed a petition. This
notice was untimely.
The lower court battled back
and forth over the correct answer to whether the notice given was acceptable,
albeit late. In the first appeal, the
Board concluded that the notice was not timely, but remanded the case for
determination of whether the employee had a reasonable excuse, and whether the
employer had suffered any prejudice due to the lack of notice. This lower court
held that the employee offered no reasonable excuse, but the employer had not
shown prejudice, and the original award of benefits was reinstated. The case
was again appealed.
After the second appeal, the
Board caught on to the confusion. The lower court was applying subdivisions
(a)(1) and (a)(3) of § 50-6-201 synonymously in this case. The Board clarified
that these subdivisions are separated in the Code for a reason. Subdivision
(a)(1) applies to failure to give timely notice. Conversely, subdivision
(a)(3) applies to defective notice. These are wholly different
scenarios. At this point, the Board stepped in to “[draw] a distinction between
untimely notice and defective notice and the burden accompanying each notice
deficiency.”
The Board held: Firstly, in
cases involving the lack of timely written notice, the employee bears
the burden of proving that (1) timely written notice was provided; (2) the
employer had actual knowledge of the accident or injury; or (3) the employee
has a reasonable excuse for the failure to provide timely written notice.
Secondly, when an employer affirmatively asserts a defect or inaccuracy in
the written notice, the burden shifts to the employer to prove prejudice.
Therein lies the problem the court faced in the Ernstes case – defective
notice was not asserted, no reasonable excuse was provided, and prejudice to
employer was not applicable for this lack-of-timely-notice case.
The lower court could not
ignore subdivision (a)(1) – requiring a reasonable excuse for failure to
provide timely notice – and instead apply subdivision (a)(3), forcing the
employer to show prejudice. This comingling of statutory burdens allowed the
lower court to arrive at an incorrect result. This clarification from the Board
recognizes an overlooked distinction that attorneys, adjusters, employers, and
employees, must take into further consideration – and more acutely consider –
for cases pending from this point onward.
For any questions, please
contact:
Fredrick
R. Baker, Member
Brendan
Walsh, Associate
Wimberly
Lawson Wright Daves & Jones, PLLC
1420
Neal Street, Suite 201
P.O.
Box 655
Cookeville,
TN 38503-0655
Phone:
931-372-9123
Fax: 931-372-9181
fbaker@wimberlylawson.com
bwalsh@wimberlylawson.com
www.wimberlylawson.com