By: Allen Callison, Associate, Nashville

When the Reform Act went into effect on July 1, 2014, most of us assumed that it would largely do away with aggravation cases based on the “primarily arising out of” standard.  While this has been somewhat true, the Appeals Board recently issued a decision that casts doubt on our assumptions.  In the case of Miller v. Lowe’s Home Centers, Inc., 2015 TN Wrk. Comp. App. Bd. LEXIS 40 (Tenn. Wrk Comp App. Bd. 10/21/15), the Appeals Board ordered the Employer to provide a total hip replacement for a minor injury even though all doctors agreed that the Claimant’s osteoarthritis was entirely pre-existing and the injury caused no anatomical change. 

If you are thinking to yourself that an injury without anatomical change was not compensable under the old law, you are correct.  In Barnett v. Milan Seating Systems, 215 S.W.3d 828 (Tenn. 2007), the Supreme Court held that “if the employment causes an increase in pain with no corresponding permanent anatomical change, then there is no new compensable injury.”  However, in Miller, the Appeals Board completely swept that case law aside because it was decided under the pre-2014 reforms. 

Instead, the Appeals Board focused on the statutory requirement under T.C.A. § 50-6-102(13)(A) that an aggravation of a pre-existing condition is a compensable injury when “it can be shown to a reasonable degree of medical certainty that the aggravation arose primarily out of and in the course and scope of employment.” In the Miller case, the ATP testified that the Claimant had no symptoms from his osteoarthritis prior to the accident, but was symptomatic afterwards.  Therefore, the ATP testified, the at-work accident “chronically exacerbated” the underlying condition, causing pain and necessitating surgery.  The Appeals Board found this testimony sufficient to establish a compensable “aggravation” under the law.

Following the precedent in the Miller case, the Court of Workers’ Compensation has similarly ordered benefits in a handful of cases in which there has been no proof of anatomical change, but merely an increase in pain.  This raises the question of whether the Reform Act actually provides coverage for more injuries than the old law.  If so, it only further reinforces our belief that having the most conservative doctors on your panels will lead to the best result. 

Tennessee Practice Point:

Beginning February 28, 2016, Tennessee will begin using the ODG treatment guidelines and drug formulary for all dates of injury after 1/1/16.  If you have questions about how this would effect a claim, please give us a call. 

Allen Callison, Associate, Nashville