By: Allen Grant, Partner, Nashville

As seems to be the annually with the Tennessee Workers’ Compensation Act, the 2016 Session of the Tennessee legislature again enacted substantive changes to the Act that will have a dramatic impact on claim exposure, claims handling, and denial decisions, in particular.

Senate Bill 2563 was passed on March 31 and signed into law as Pub. Chapter 816 on April 14, 2016, effective that same day.  While this bill made significant changes to several sections of the Tennessee Workers’ Compensation Act, the most impactful of these was a new layer of exposure for claimant’s attorney’s fees that did not previously exist.  Section 6 of this bill modifies T.C.A. 50-6-226(d)(1)(a), the section pertaining to claimant’s attorney’s fees in future medicals disputes.  Previously, attorney’s fees and reasonable expenses could only be awarded following an unsuccessful denial related to the open medicals provision of a final settlement or judgment. However, under this new law, a judge can now award attorney fees due to an unsuccessful denial of medical benefits that were awarded in a compensation hearing order and also an expedited hearing order.  An expedited hearing order is essentially an interlocutory order, which is not final, and for which no attorney’s fees could previously be awarded. Expedited hearings can occur very soon after a claim’s reporting, not providing a great deal of time for investigation, discovery, and depositions.  While we have all seen the exit of plaintiff’s attorneys from Tennessee workers’ compensation claims and a majority of claimants unrepresented, I believe shrewd claimant’s attorneys will being marketing for workers’ compensation business again and attempt to fight denials following an initial order for benefits. 

Just two weeks later, Pub. Chapter 1056 was signed into law on April 28, 2016, became effective July 1, 2016, and applies to claims with dates of injury from July 1, 2016 to June 30, 2018. This bill further tweaked the attorney’s fee’s statute, T.C.A. 50-6-226(d), incorporated the changes made by Pub. Chapter 816, and took it one giant step further. While Pub. Chapter 816 opened up the door for plaintiff’s attorney’s fees if benefits are denied following any expedited hearing or compensation hearing order, Pub. Chapter 1056 also allows for attorney’s fees in any case where a claim was denied and later determined to be compensable by a workers compensation judge at an expedited hearing or compensation hearing, or when a judge determines medical or temporary benefits were not timely initiated.

These bills result in a dramatic shift in the availability of attorney’s fees for claimants in Tennessee workers’ compensation matters, and I believe they will draw many more plaintiff’s attorneys back into workers’ compensation practice. I anticipate we might soon see more challenged denials, more claims brought to hearing, greater claim exposure, and even the resurgence of plaintiff’s IME’s in Tennessee practice to combat a favorable causation opinion from the authorized treating physician. While these legislative changes carry much greater exposure risk for denials and late benefits, the burdens of proof and standards under the 2013 Reform Act are still much more favorable to the employer than in pre-July 1, 2014 “old law” claims. If you have any questions regarding the compensability of any claim or your exposure, please feel free to contact our Nashville office to review the specific facts of your case.