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Articles Posted in Workers’ Compensation

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For most people in Tennessee, whether you live in Memphis, Jackson, Knoxville, Nashville, or Chattanooga, we get up each day and go to work. Workers rely on their paychecks to take care of everyday necessities – rent, mortgage, utilities, food, childcare, bills and more. What happens if one day, you go to work like you always do, but when performing your job duties, you get hurt? All of the sudden, you start to worry about your health and how you can get better. Another concern is your paycheck, and how bills could start to pile up.

Suffering a work-related injury is stressful. Sometimes there can be animosity towards a co-worker or the employer itself, especially when the injured employee thinks his or her employer did something to cause the injury. A question commonly asked by injured Tennessee workers is this: can I sue my employer for a work injury?

The Exclusive Remedy Rule

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On March 1, 2018, in Carpenter v. Southern Transit, the Tennessee’ Workers Compensation Appeals Board affirmed the trial court’s ruling in favor of NST’s client that had suffered an on the job injury. Following his injury, our client’s medical treatment recommended by his doctor was denied by multiple insurance carriers, leading to NST attorney Monica R. Rejaei filing for an expedited hearing on the issue, which was granted. The decision was appealed, with the insurance companies claiming our client’s injuries were not caused by his employment.

Under Tennessee workers’ compensation law, “injury” is defined to mean “an injury arising out of and in the course of employment that causes either disablement or death of the employee and shall include occupational diseases arising out of and in the course of employment that cause either disablement or death of the employee.” To determine whether one’s condition constitutes an on the job “injury” compensable through workers’ compensation, relevant evidence can include the employee’s medical records and testimony of the treating physician.

Our client is a 66 year old resident of Memphis, Tennessee, employed as a truck driver for a logistics company. Occasionally, he would drive trucks belonging to another trucking company in the area when his primary truck was being serviced. In November 2016, while operating a truck belonging to the other company but within the course and scope of his employment, our client was transferring a trailer to another driver and bringing said driver’s trailer back to the hub. During this travel, the driver’s seat in the tractor was broken, continuously striking him in the lower back throughout his travel. He reported this injury to his supervisor that day. Just over one week later, as our client was stepping out of the truck belonging to the other company, he felt a sharp pain in his lower back that radiated down into his legs. This incident was once again reported to his supervisor.

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On February 8, 2018, in Bowlin v. Servall, LLC, the Tennessee Workers’ Compensation Appeals Board affirmed the trial court ruling in favor of one of NST’s clients who was injured on the job. Following the trial court ruling that out client was entitled to medical benefits for her severe neck injury resulting from an automobile accident, the employer appealed alleging that the employer’s substantial compliance with the Tennessee Drug-Free Workplace Program rules was sufficient for the employee’s claim to be denied due to her drug test results that showed positive for marijuana. The employer additionally claimed that the trial court erred in awarding attorney’s fees based upon the unpaid medical bills.

In Tennessee, a workers’ compensation claim can be denied if an injured worker tests positive for any illegal substance, even if the injured worker was not actually under the influence of the illegal substance at the time of the injury. For example, if an employee used marijuana seven (7) days before that employee was injured at work, the employer can maintain denial of the claim based on the positive drug test results following the injury.

In the event an injured worker tests positive for any illegal substance following an injury, the viability of their claim may depend on whether their employer is certified through the Tennessee Drug-Free Workplace Program and follows all statutory requirements of this Program.

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March 18, 2013 was a tragic day for the family of David Priester, Jr. – the 38-year-old Boeing employee fell from an elevated platform at Boeing’s campus and ultimately passed away. In August 2017, his widow got justice from a jury in the form of an $8.8 million verdict against SAR Automation, the company Boeing hired to program the computer that controlled movable sliders on the platform in which Priester fell. Suit was filed against SAR Automation and two other companies. Claims against those companies settled before the trial began.

At trial, it was argued that SAR Automation did not properly program multiple safety features designed to prevent accidents, such as sirens and warning lights. On Priester’s platform, sliders were supposed to be no more than 3 inches from the aircraft at any given time. However, in this particular case, one of the platforms did not extend as it should have, and Priester fell 18 feet through the gap. His eventual death was caused by brain injuries suffered in the fall.

This case highlights many issues in the industrial and construction industries. With workers operating complex machinery, relying on innovative technology, and performing taxing manual labor, they are some of the most dangerous industries worldwide, and those dangers are only exacerbated when an unsafe workplace is provided. While employers must follow state safety regulations and OSHA standards, mistakes do happen. Unfortunately for the injured employee, his or her exclusive remedy against the employer is likely to be workers’ compensation, even if the employer could have been considered negligent in some form or fashion. While workers’ compensation provides valuable medical benefits, wage benefits are awarded at a reduced rate, and non-economic damages like pain and suffering are generally not recoverable. This results in injured employees not being completely made whole after an accident.

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Did you know that you could be entitled to workers’ compensation benefits in Mississippi while injured on the job, even if you are found to be at fault for speeding during an automobile accident? In a June 2016 decision (affirmed in July 2017) from the Mississippi Court of Appeals, a police officer for the City of Jackson was injured while speeding and on his way to an emergency call. His employer, the City, alleged that he was acting with a “willful intent to injure” himself, and based on this intent, that he should not be permitted to make a claim for workers’ compensation benefits. The case is City of Jackson v. Kearney Brown, No. 2016-WC-01164-COA.

The Mississippi Court of Appeals disagreed with the employer, stating that in the 10-0 decision mentioned above, that the police officer was entitled to benefits, regardless of his disputed fault. Workers’ compensation laws in the State of Mississippi cover injured workers who receive injuries by way of an accident arising out of the course and scope of their employment. However, workers’ compensation benefits will not be paid to an injured worker if they were injured by their willful intent. This test for willfulness is based on intent and whether the facts of the claim support a willful intent to injure oneself.

The attorneys for the employer above tried to argue that the police officer intentionally injured himself, which meant he should not be paid benefits owed to him pursuant to Mississippi law. The facts presented by the employee showed that he was injured by an accident, and therefore, he was entitled to his benefits.

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Each year, workers’ compensation claims end up costing employers and their insurance companies tens of billions of dollars, according to Liberty Mutual Insurance’s Workplace Safety Index. Workplace accidents and injuries that caused employees to miss six or more days of work cost private employers nearly $60 billion in 2014. OSHA has also estimated that employers pay approximately $1 billion per week for workers’ compensation costs.

Workplace injuries cost employers billions annually in the form of workers’ compensation. These benefits include payment for medical bills, wages, and permanent impairment. In many states, including Tennessee, employers who regularly employ five or more employees are required to carry workers’ compensation insurance, subject to narrow exceptions in the law.

A workers’ compensation claim is distinguishable from a typical personal injury claim primarily because the injured worker does not always need to prove negligence on part of the employer in order to recover. This is why workers’ compensation is frequently referred to as a “no-fault” system. That being said, it is beneficial to hire an experienced workers’ compensation attorney to help navigate this unique field of law that is constantly evolving. For instance, workers’ compensation law in Tennessee drastically changed in 2014 when new legislation was enacted.

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A unique issue that can arise in Tennessee workers’ compensation law is when employees are hired by contractors to perform work and get injured on the job. Many people in Tennessee work for temporary agencies or staffing companies, and they are then hired by a contractor for a limited duration to assist with a particular job or project. After sustaining an on the job injury, the employee will want to know which workers’ compensation insurance carrier will be required to provide benefits under Tennessee law.

Pursuant to Tenn. Code Ann. § 50-6-106(5), an employer that regularly employs more than five (5) individuals must carry workers’ compensation insurance coverage. As a general rule, however, pursuant to Tenn. Code Ann. § 50-6-113, a principal contractor or sub-contractor can be held equally liable to an injured employee as long as the employee was engaged in the subject matter of the contract to the same extent as the immediate employer. The purpose of this statute is to ensure employees are eligible to receive medical care and temporary and/or permanent disability benefits when injured within the course and scope of their employment, even if the employee’s immediate employer did not carry workers’ compensation insurance coverage. Benefits under this statute often are received through a principal contractor when an employee is hired through a temporary service and assigned to perform work with a specific employer or when an employee is employed through an employer with no workers’ compensation insurance coverage and the employee is assigned, directed, or contracted to perform work for a separate business/company.

Tenn. Code Ann. § 50-6-113 does not apply to the construction industry. Instead, we look to Tenn. Code Ann. § 50-6-901.  All individuals or entities in the construction industry are required to carry workers’ compensation insurance coverage, regardless of whether they employ more than five (5) individuals. However, specifically in the construction industry, an individual or entity may qualify to apply for exemption under Tenn. Code Ann. § 50-6-903. All applications for exemption must be reviewed and approved by the Tennessee Secretary of State. If approved, the individual or entity is then added to the Workers’ Compensation Exemption Registry.

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On November 16, 2016, a construction accident left one dead and another injured in Memphis, Tennessee. The accident occurred around 11:00 a.m. at the Cargill plant on President’s Island. According to reports, Cargill was in the process of tearing down buildings on its property. Officers from the Memphis Police Department arrived at the Cargill plant to investigate the accident, and the investigation revealed a wall collapsed during a demolition at the plant.

In a written statement, Cargill stated the deceased employee was a contractor hired to work at the plant. The worker who was injured is also a contractor, and he was taken from the scene to the hospital in non-critical condition. While the investigation will likely remain ongoing for quite some time, police have confirmed there did not appear to be any gas or chemical leaks that could further injure employees or those nearby.

In Tennessee, when a worker sustains injuries on the job, that person is typically able to recover certain benefits through the state’s workers’ compensation system. In most situations, instead of filing a lawsuit against the employer for negligence, Tennessee law states the injured worker’s remedy is making a workers’ compensation claim through their employer’s workers’ compensation insurance. Tennessee law requires employers with five or more employees to carry workers’ compensation coverage. Once coverage is established for the accident, the injured employee can be entitled to benefits such as medical bills, wage loss, and permanent impairment, once treatment is complete. Receiving these benefits promptly can be critical, especially if the workplace injury leaves the employee unable to return to work.

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Employees who work for an employer covered by the Tennessee Workers’ Compensation Act who have been injured while within the course and scope of their employment are entitled to receive medical care through the employer’s workers’ compensation insurance carrier. Tennessee law obligates the employer to provide an injured employee with medical benefits for any work-related injury. For medical care to be covered by the employer or workers’ compensation insurance carrier, the injury must arise primarily out of and in the course and scope of employment, and the employment must contribute more than 50% in causing the injury, considering all causes. The employee has the burden of establishing every element of his or her claim by a preponderance of the evidence.

In July 2014, the statutory definition of injury under the Tennessee Workers’ Compensation Act was updated to exclude aggravation of pre-existing conditions unless it can be shown, to a reasonable degree of medical certainty, that the aggravation is more than 50% caused by the employment.  The opinion of the authorized treating physician through the workers’ compensation insurance carrier is presumed correct on the issue of causation, but this presumption can be rebutted by a preponderance of the evidence.

In a Tennessee workers’ compensation claim, determining whether an injury is work-related is a decision to be made by a physician, not by the employer or insurance carrier. The Court of Workers’ Compensation Claims and the Workers’ Compensation Appeals Board have held that as long as the employee comes forward with sufficient evidence to support a conclusion that their injuries may be work-related, the employer should provide medical care. From there, the authorized physician should make a determination as to whether the injury is causally related to the employment.

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