Is It Time to Reevaluate Existing Workers’ Compensation Permanent Disability Determinations?

Jun 25, 2018

Dennis G. Sadler

The recent upturn in the economy may provide Tennessee Employers and their Workers Compensation insurers (Employers) with reasons to reevaluate the employability of injured workers who are receiving permanent total disability benefits under Workers’ Compensation. In addition to the potential for improvement in physical conditions, the economic upturn may provide these injured employees with an opportunity to return to occupations that bring them income.

Under Tennessee’s Worker’s Compensation Act, employees who sustain a workplace injury that "totally incapacitates [them] from working at an occupation that brings the employee an income” are entitled to ongoing Permanent Total Disability Benefits (“PTD”)[1]. The determination is not dependent upon whether they are able to return to their pre-injury job or occupation, but rather, whether they can work in any occupation that brings them an income[2]. Rather, it is based on a variety of factors, including the employee’s skills, training, education, age, job opportunities in the immediate and surrounding communities, and the availability of work suited for an individual with that particular disability.[3]

Subject to conditions discussed below, after a determination is made that the employee is entitled to PTD, the Employer may periodically have the employee re-examined, at their own expense, and they may seek reconsideration of the issue of PTD. Because of the recent improvement in the economy, if the initial determination depended highly upon the high unemployment rates at the time, Employers may wish to take another look at whether employees on PTD might now be able to return to the improved job market.

Specifically, in most areas in Tennessee, the “job opportunities in the immediate and surrounding communities” are likely to be significantly improved. According to the most recent employment statistics, the current seasonally adjusted unemployment rate in Tennessee is 3.4%, which is lower than the national average of 3.9%.[4] This is a tremendous reduction from the historic high of 11.3% in June 2009. Currently, all of Tennessee’s 95 counties currently have an unemployment rate of 5% or lower, with 30 counties enjoying an unemployment rate of less than 3%.

Perhaps even more importantly for PTD reevaluation, the number of available jobs in Tennessee has increases steadily since 2009 and is at an all-time high. The total number of available jobs is projected to continue to increase by over 11,000 additional jobs annually for the foreseeable future. [5] Of these new jobs, approximately 68%, will not require any college education.

Nationally, the employment trend is already having a tremendous impact on the number of people receiving Social Security Disability (SSDI). The Termination Rate, which measures the beneficiaries who leave SSDI increased 4.67% from 2017 to 2016.[6] In fact, the Termination Rate is at an all-time high, while the number of disability applications is at the lowest point since 2006. As a result, the number of people receiving SSDI has dropped so dramatically, the agency has revised its estimate of financial security of the program, and extended its anticipated solvency by 4 years.

Based upon the current and projected trends, Tennessee Employers may wish to take a look at the potential impact on the employability of persons who were previously deemed to be PTD. With the decrease in unemployment rates and the increase in available jobs, especially those requiring no advanced education, a reevaluation of some employees may reflect a change in their ability to obtain a job that will bring them income, and could result in a finding that they are no longer entitled to PTD.

Lest anyone accuse the Employers of being uncaring because of efforts to return employees to work, several physicians’ organizations, including the American Academy of Orthopedic Surgeons, strongly recommend that injured employees be returned to work as soon as possible.[7] Moreover, sound science indicates that continued unemployment is hazardous to an individual’s physical and mental well-being.[8] Therefore, if an individual is capable of returning to work in some capacity, doing so is in their best interest from both a psychological and physical standpoint.

Should an Employer determine that an employee should be reevaluated in regard to their ability to work, there are some requirements which must be followed in order to do so:

1)The request for an examination cannot be made until at least 24 months after the date of the entry of a final order that determined that the employee was PTD, and at least 24 months since any previous reexamination;

2)The request for the reexamination must be reasonable in regard to notice provided prior to examination, the place of examination, and the length of the examination;

3)The Employer must first make informal contact with the employee, to attempt to schedule an appointment with a physician for examination at a mutually agreeable time and place. There is a requirement that this effort be done “in good faith.;”

4)If a mutual agreement is not reached within 30 days, the Employer must send the employee written notice of demand for examination by certified mail, return receipt requested, on a form provided by the department. This must inform the employee of the date, time and place of the examination; the name of the examining physician; the employee's obligations; any pertinent time limitations; the employee's rights; and any consequences of the employee's failure to submit to the examination. Additionally, the examination must be scheduled to take place within 30 days of the date on the notice. However, within 30 days, the employee has the right to provide an alternative date for the examination, provided it is within 90 days of the notice;

5)If the employee fails to submit to the examination and fails to timely schedule and attend an alternative examination, then the employee's periodic benefits can be suspended for a period of 30 days; However, if the employee submits to an examination during the period of suspension of benefits, within 14 days, the benefits must be restored and any benefits that were withheld must be paid; and

6)Within 10 days of any suspension of benefits, the Employer must provide the bureau with written notice of the suspension, the effective date of suspension, and a copy of the original notice to the employee.

However, if the employee cooperates and attends the examination, and the examination reflects that the injured worker may now be able to return to the workforce, the Employer must first attempt to mediate the issue. However, if mediation is unsuccessful, the Employer may seek reconsideration of the initial determination of eligibility for PTD. The precise mechanisms for doing so are dependent upon whether the injury occurred prior to July 1, 2014.

For injuries occurring prior to July 1, 2014, Employer must request a Benefit Review Conference (BRC) with the department. If the BRC is unsuccessful, the Employer may petition the original court that made the determination to reconsider whether the changes in circumstances have resulted in a change to the employee’s eligibility for PTD.

For injuries occurring on or after July 1, 2014, the Employer must file a Petition for Benefit Determination and participate in alternative dispute resolution (ADR). If ADR is unsuccessful, after the workers' compensation mediator issues a dispute certification notice, the Employer may file a request for a hearing before the Bureau of Workers’ Compensation.

Employers should carefully consider their potential for success at a hearing, and keep in mind, for employees who were injured prior to July 1, 2014 the law still provides a presumption in favor of benefits. However, the presumption is not provided to employees injured on or after July 1, 2014. Nonetheless, regardless of the date of injury, if an employee prevails on the reconsideration, they will most likely be awarded their reasonable attorney fees, court costs, and expenses incurred in the hearing.

Still, in those cases that were initially “close calls,” or which were highly dependent upon the availability of jobs in the immediate area, Employers may benefit from reviewing those cases and obtaining reexaminations, including medical and vocational opinions on employability. If the results favor reexamination of the PTD decision by the court, Employers may wish to engage mediation, and consider requesting a rehearing on the issue of total disability.

Dennis Sadler received a J.D. from the University of Memphis, Cecil C. Humphreys School of Law and an LL.M. in Health Law from Loyola University, Chicago School of Law. He is a Member of the law firm of Leitner, Williams, Dooley & Napolitan, where his practice focuses on health law, construction law, products liability, and workers’ compensation.

Footnotes:

[1] Tenn. Code Ann. § 50-6-207 (2014).

[2] Prost v. City of Clarksville, Police Dept., 688 S.W.2d 425 (Tenn. 1985).

[3] Hubble v. Dyer Nursing Home, 188 S.W.3d 525, 535-36 (Tenn. 2006).

[4] https://www.tn.gov/content/dam...

[5] https://www.jobs4tn.gov/admin/...(REUPDATE)2016_0727.pdf

[6] https://www.ssa.gov/OACT/STATS...

[7] AMA Guides to the Evaluation of Work Ability and Return to Work, Second Edition at p. 2. American Medical Association.

[8] Id. at pp. 2-6.