State Self-Insurer Association Helps Get 2 Bills Passed in Legislature
Wednesday, June 17, 2009 | 0
By Terry L. Hill
Congratulations are in order! We have successfully escorted two bills through the legislative system which we were deeply involved in promoting. The bills are as follows:
1) SB1574. This bill puts to rest the Overstreet decision, a 2008 Supreme Court case preventing employers, insurance carriers and attorneys from communicating with the authorized treating physician. SB 1574 allows us to communicate with the authorized treating physician under the following terms:
- The employer may send written communications to the treating physician, but must copy the employee or the employee's attorney on the correspondence with any attached materials and must provide the employee or the employee's attorney with copies of the physician's response to the correspondence within seven (7) days of receipt.
- The employer may communicate orally with the treating physician, but must send the employee or the employee's attorney a written summary of the opinions or statements of the physician within seven (7) days of a request by the employee or the employee's attorney.
- The employer's attorney may communicate orally with the authorized treating physician, but must provide written notice to the employee or the employee's attorney at least seven (7) days prior to the communication and must provide the employee or the employee's attorney with a written summary of all opinions expressed by the physician within seven (7) days of the communication.
It was our position that there should not be any restrictions on our ability to communicate with the authorized physician, but it was also our feeling that this law will help us much more than it will hurt us and we felt very strongly that it should be passed. This bill passed both legislative chambers and will soon be transmitted to the governor for his signature.
2) SB1909. This bill also deals with a recent Supreme Court decision. That decision greatly expanded the scope of employment to include workers who were voluntarily engaged in recreational activity. Our bill puts some very specific restrictions on the ability to successfully make a workers' compensation claim for a person who is injured during a recreational activity.
The bill disallows employees from recovering for injuries sustained during recreational activities, except in the following limited circumstances:
- When the employee's participation was expressly or impliedly required by the employer; or
- When the employee's participation produced a direct benefit to the employer beyond improvement in employee health and morale; or
- When the employee's participation was during the employee's work hours and was part of the employee's work-related duties; or
- When the injury occurred due to an unsafe condition during voluntary participation using facilities designated by, furnished by or maintained by the employer on or off the employer's premises and the employer had actual knowledge of the unsafe condition and failed to curtail the activity or program or cure the unsafe condition.
On June 1, 2009, SB1909 was transmitted to the governor for his signature.
Additionally, two other business bills are close to becoming law. SB 1567 states that if an employer gets bought out by another company and retains the employee at the same or greater pay, the employee is not entitled to reopen his case under T.C.A. S50-6-241(a).
Prior case law counter-intuitively dictated that when a company simply changed its name, the employee could reopen his case and still keep his job. On May 27, 2009, this bill was transmitted to the governor for his signature.
Second, SB 2162 makes clear that an employee who is an illegal alien may not recover more than 1.5 times his impairment rating. The argument here is that the employee should not be able to go up to the 6 times cap if the employer is required to fire the employee because of the federal law that prohibits the employer from retaining illegal workers.
However, the bill also holds that if the employer is aware that the employee is illegal, there will be an automatic award of 5 times the rating. The employee will not get those funds, which will go to the State Second Injury Fund. This bill has passed the Senate and will soon be voted on in the House.
Congratulations are in order to our esteemed Legislature which has made these significant changes to state law in spite of party differences.
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Terry L. Hill is executive director of the Tennessee Self-Insurers' Association. Hill is a principal and chairman of the executive committee at the Manier & Herod law firm in Nashville.
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