TN WORKERS’ COMP CHRONICLE January 2013

1. TN Workers’ Comp Chronicle
January 2013
Inside This
Issue:
• Business Wants
Workers’ Comp
Out of the
Tennessee
Court System
• MIJS
Successful
Defense Cases
• Unemployment
Insurance
Accountability
Act
Moore, Ingram, Johnson & Steele LLP (865) 692-9039
Business Wants Workers’ Comp out of the Tennessee
Court System
Regardless of whether the
system is moved from the Court, the
consultants recommended a “complete
overhaul” of the multiplier framework
for adjudicating an employee’s
permanent partial disability. Tennessee
has traditionally used a multiplier of
between one and six times the injured
the worker’s permanent impairment
rating to award permanent indemnity
benefits. Such awards are of course
“capped” if the employee makes a
meaningful return to work. The
consultants believe that a more
streamline and simple formula is
appropriate, but the actual equation was
not released.
Finally, the proposal suggests
setting a more definite standard for
causation of an injury. As it stands, in
many claims the “could be” standard
allows what many believe to be
conjectural medical evidence to prevail
in a disputed claim. The 2011 reform
took an initial bite at this apple, but
based on the recommendations of the
consultants, more reform may be in
store.
While these are the
recommendations of the consultants, the
Governor may have his own plans in
store. He is currently studying all
potential reforms and will decide
whether to adopt the recommendations
or pursue his own path. Regardless, it
appears that another round of reform if
not complete overhaul is in store for
Tennessee’s workers’ compensation
system.
Tennessee Governor Bill
Haslam’s office recently confirmed that
he will propose substantial workers’
compensation reform in the 2013
legislative session. The State of
Tennessee hired several outside
consultants in 2012 to analyze the
system and put forth recommendations.
Those recommendations were recently
revealed and the battle lines are being
drawn for upcoming reform.
Based on the consultant’s
recommendation and conclusions of the
Department of Labor summer study
session, it appears that the reform will
involve an administrative system of
some sort. The devil, of course, is in the
details and no concrete legislation has
been set forth.
However, one of the primary
themes of the recommendations is the
problems created by the Court’s practice
of liberally construing the Workers’
Compensation Act in favor of the
employee. Instead, the consultants
recommended that the workers’
compensation laws be interpreted in a
“neutral and even-handed” manner. The
consultants also recommended a change
to the administrative review process
which would call for administrative law
judges supplanting the traditional court
process. However, the costs associated
with a commission may be an issue in
the legislature.
By: Gregory H. Fuller

2. TN Workers’ Comp Update Page 2 of 4
Brian Brown v. Vintec– Employee
was injured in 2001 while working
for Vintec, which was operated as a
joint venture between an American
company and a Japanese company.
The claim was settled based upon the
2.5 times cap in place at the time,
and the employee returned to work.
Some months following his return to
work, the employee missed
additional time and was paid some
TTD. He returned to the employer
after this brief period and worked
continuously until he was laid off in
2010. He then sought
reconsideration benefits.
We argued successfully at the
trial court that the 400 week clock
for reconsideration benefits began to
run upon his initial return to work
and that his subsequent time out of
work did not toll the 400 weeks. The
Employee attempted to argue that his
400 weeks did not begin to run until
such time as he had a “meaningful
return to work” and he argued that
did not occur until after the second
period of TTD. The trial and
appellate court rejected that
argument and adopted a plain
language reading of 50-6-241,
rejecting a “meaningful return to
work” analysis for the running of the
400 week period during which
reconsideration benefits are allowed.
MIJS Successful Defense Cases
e
Cheyenne Duffer, and Erie Insurance
Co. v. Keystops, LLC – We
represented the Intervening Plaintiff
asserting our subrogation interest
against the Defendant. During
discovery, it was revealed that the
plaintiff’s legal name is Jason Elmer
Johnston, and that she had in fact been
born a man. The plaintiff has not had
sexual reassignment surgery and has
not legally changed her name to
Cheyenne Duffer. The Defendant
moved to have the case dismissed as
the Plaintiff had perpetrated a fraud
upon the Court.
We argued at the trial level that
as the Intervening Plaintiff had no
knowledge of the fraud and was not
otherwise alleged to have committed
any fraudulent act, we should be
allowed to continue an independent
cause of action. The trial court
disagreed and dismissed us as well.
The Plaintiff and Intervening Plaintiff
each appealed. The Court of Appeals
affirmed the dismissal of the Plaintiff;
however, the Court reversed the
dismissal of the Intervening Plaintiff,
agreeing that no fraud had been
perpetrated by Erie.
Additionally, the Court held
that even though the 6 month
extension to the employee’s one year
statute of limitations granted to
employers under the Workers Comp
Act had run, the dismissal acted as an
assignment of the cause of action to
the employer for 6 months. As the
Intervening Plaintiff had already filed
an Intervening Complaint, the Court
ruled that our action was proper and
could continue forward.
By: Charles E. Pierce

3. TN Workers’ Comp UpdatePage 3 of 4
On January 5, 2009, the
employee, a human resources
director for the employer, slipped
and fell after depositing the mail in
the mailbox in front of the
employer’s office building.
Employee alleged injuries to her low
back and shoulder. Employee treated
with various medical providers and
most notably, with Dr. Brian
Holloway, an orthopedic surgeon,
who performed two surgeries on
employee’s shoulder to repair a torn
rotator cuff. Dr. James Maguire
treated the employee for her back
injury.
On January 8, 2009, three
days after the injury, the employer’s
executive director offered the
employee a consulting position,
which would have allowed her to sit
or stand at her leisure and simply
give verbal commands to others. The
employee did not accept this offer
but did communicate from home
with a co-worker as to how to
perform her job duties. On April 13,
2009, the employee received a letter
from the executive director
explaining that if she failed to return
to work by April 17, 2009 he would
consider that employee had
abandoned her employment,
resulting in her termination.
Employee did not even respond to
the letter and was terminated.
The employee explained at
trial that she did not return to work
because of a consumer/co-worker, an
intellectually disabled janitor, was a
danger to her well-being because he
would regularly run the hallways,
scream, beat on doors, touch, hug,
kiss people, and sometimes grope the
Tina Kelley v. D&S Residential Holdings, LP
breasts of female employees. It is
important to note that the employer
provides direct care services for
persons with intellectual disabilities,
whom the employer refers to as
consumers. This specific consumer
was also provided a job as a janitor
in the main office where the
complaining employee worked. The
employee further testified that she
had to routinely defend herself by
pushing, pulling or blocking the
consumer’s advances. The employee
attempted to argue that these were
unwritten job requirements that
would be outside of her restrictions.
On cross examination, the
employee conceded that even though
she had regular communication with
the co-worker covering her position
and occasional communication with
the executive director, she had never
blamed the antics of the consumer as
a reason for not returning to work.
She also acknowledged that she did
not identify her fears of the
consumer to her employer after her
April 17, 2009 termination.
The trial court determined
that the employee was unreasonable
in her efforts to return to work
stating that “[T]here is no way an
employer can return an employee to
work if the employee does not reveal
why she will not return.”
Accordingly, the trial court applied
the 1.5 statutory multiplier for a
meaningful return to work.
Employee’s counsel appealed the
trial court decision to no avail. The
Supreme Court Special Workers’
Compensation Appeals Panel
affirmed the trial court’s judgment
stating “the employer gave the
By: Daniel Starnes
employee every opportunity
to return to her employment
for the same wage and under
optimum
circumstances…Instead of
either attempting to return to
her job or offering an
explanation as to why she
chose not to do so, the
employee simply chose not to
respond at all.”

4. TN Workers’ Comp Update Page 4 of 4
The Unemployment
Insurance Accountability Act of
2012 became law in Tennessee on
May 9, 2012. The law adopts
several significant reforms that
will better serve all employers
who experience unemployment
claims. Most notably, the law
strengthens the definition of
“misconduct,” tightening
eligibility requirements for
unemployment benefits, and
clarifying the prior standards.
Under the newly enacted law,
“misconduct” includes, but is not
limited to, the following conduct
by a claimant: (1) willful
disregard of the rights or interests
of the employer; (2) deliberate
violations or disregard of
reasonable standards of behavior
set by an employer; (3)
carelessness or negligence of such
a degree or recurrence to show an
intentional or substantial disregard
of the employer’s interest or to
manifest equal culpability,
wrongful intent or shows an
Unemployment Insurance Accountability Act of 2012
MIJS is a value oriented law firm
focused on providing customized
solutions for our clients. Based in
Marietta, GA, MIJS offers a full
spectrum of legal services ranging
from general liability to transactional
tax planning.
Our Knoxville & Nashville offices
specialize in workers’ compensation
About Moore Ingram Johnson & Steele…
Knoxville Office:
408 N. Cedar Bluff Rd
Suite 500
Knoxville, TN 37923
PHONE:
(865) 692-9039
FAX:
(856) 692-9071
E-MAIL:
WTH@MIJS.com
Online
www.mijs.com
Nashville Office:
3200 West End Avenue
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Nashville, TN 37203
PHONE:
(615) 425-7347
FAX:
(615) 783-1665
intentional and substantial
disregard of the employer’s
interests or of the employee’s
duties and obligations to the
employee’s employer; (4)
deliberate disregard of a
written attendance policy; (5) a
knowing violation of a state
regulation, which would cause
the employer to be sanction or
have the employer’s license
revoked or suspended by the
state; or (6) a violation of an
employer’s rule, unless the
claimant could not have
reasonably known of the
requirements, or unless the rule
is unlawful or not reasonably
related to the job. The law also
enacts new work search
requirements for
unemployment beneficiaries,
requiring contact with at least
three employers per week or
access of services at a career
center, and provides for
random audits of job search
efforts.
defense allowing us to aggressively
minimize the overall expenses of
claims. By leveraging the experience
of sixteen workers’ comp attorneys,
we help employers and insurers
navigate Tennessee’s workers’
compensation system with an eye
towards cutting costs. Please contact
Troy Hart to see how MIJS can help
you meet your workers’ comp goals.
By: Colleen Kelley Horn