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The Division of Workers’ Compensation has received several questions and concerns regarding a recent Tennessee Supreme Court case, Overstreet v. TRW, as it applies to ex parte communications with an injured employee’s treating physician.  The Tennessee Supreme Court held that an injured employee has the benefit of confidentiality with a treating physician.  Accordingly, agents and/or representatives of the employer or insurance carrier cannot communicate with the treating physician without the employee’s and/or representative’s consent or participation, except to request the records authorized by T.C.A. § 50-6-204(a)(1) and (2).  The Division recognizes that an injured employee and/or their representative may sign a waiver or otherwise consent to waiving confidentiality, whereupon the employer or insurance carrier, or their agents and/or representatives, can communicate with a treating physician outside of the presence of the employee and/or their representative.  The Division encourages this level of cooperation. The workers’ compensation statutes require the parties and the employee’s treating physician to cooperate with the employer or insurance carrier, or their agents and/or representatives (See T.C.A. §§ 50-6-122, -123, -124, -204, etc.). 

If the employee and/or their representative refuses to sign a waiver of confidentiality, then the employer or insurance carrier, or their agents and/or representatives, cannot communicate with the treating physician either in person or telephonically unless the employee and/or their representative is present.  A treating physician is statutorily required to produce certain reports and records upon written request of the employer or insurance carrier even without the injured employee’s consent, but note that the physician should not engage in ex parte communications without that consent.  Any written communication complying with T.C.A. § 50-6-204(a)(1) and (2) should be copied to the employee and\or the employee’s representative along with any response received from the health care provider.

Source: http://www.tennessee.gov/labor-wfd/wc_overstreet_memo.pdf

See complete rules for Self-Insured Workers’ Compensation Single Employers document.

Here is the version with the proposed amendments.

STATE OF TENNESSEE
DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT
Division of Workers’ Compensation

The Workers’ Compensation Division has received several complaints with regard to two issues.  First, some payors are reimbursing board-eligible and board-certified orthopedic surgeons and neurosurgeons at the lower rate that is only applicable to non-board eligible or certified surgeons.  Second, some payors are using the “lesser of” comparisons in the Medical Fee Schedule regulations on a line-by-line basis, rather than making comparisons on the total bill or amount due.

As to the first issue, the Division’s regulations located at 0800-2-18-.02(4)(a) require that board-eligible and board-certified orthopedic surgeons and neurosurgeons are to be reimbursed at 275% of Medicare rates.  Non-board eligible orthopedic surgeons and neurosurgeons are to be reimbursed at general surgery rates, which are 200% of Medicare rates.  Please note that you are free to contract for lower rates than those provided in our Medical Fee Schedule regulations.  If, however, you are reimbursing board-eligible or certified orthopedic surgeons and neurosurgeons at the lower rate on the basis of anything other than a contracted rate or the surgeon’s usual charge, then this contravenes our policies.  Since certification status is public record and payors should know the certification status of the doctors whom they choose to put on their panels, incorrectly reimbursing at the lower rate is unacceptable.

The second issue involves regulation 0800-2-18-.02(2)(b), which requires that reimbursement to providers must be the lesser of: (1) the provider’s usual charge; (2) the fee calculated pursuant to the Medical Fee Schedule; or (3) the MCO/PPO or any other contracted price.  It is the policy of the Division that “This lesser of comparison must be done on the total bill or amount due, NOT a line-by-line comparison of items.”  While the Division prefers not to penalize payors for reimbursing at inappropriate rates, it is an option that we will utilize if compliance is not obtained in the very near future (penalties can range up to $10,000 per violation).

Please be sure to consult the Medical Fee Schedule as well as other applicable regulations and statutes to ensure that you are in compliance.  Thank you for your cooperation.

Workers’ Compensation Division

To view the contents on www.tennessean.com, go to:
http://www.tennessean.com/apps/pbcs.dll/article?AID=/200802070210/OPINION01/802070373

By SHEILA BURKE, Staff writer for the Nashville Tennessean

Telecommuters and employees who work out in company fitness centers won big with recent Tennessee Supreme Court decisions allowing them to collect workers’ compensation benefits.

But the business community and insurance companies — industries that see the court decisions as costly and tipping the scales too far in favor of employees — are poised to fight back this legislative session.

They’ve begun crafting legislation that would allow companies to have on-site fitness centers without risking liability for workers’ compensation, and they’re taking aim at a recent ruling allowing telecommuters to collect benefits if they’re injured while working at home.

“All of my clients are in favor of fairly compensating people who are injured on the job,” said Terry Hill, an attorney and executive director of the Tennessee Self-Insured Association. “The question is: What is on the job? If you’re working out on your own time, is that on the job? I don’t think so. If you hurt yourself going to the kitchen at home, is that on the job? I don’t think so.”

A representative from the business community agreed.

“We’ve had some of our members raise concerns about both cases,” said Bradley Jackson, vice president of government affairs at the Tennessee Chamber of Commerce & Industry.

But groups that want to undo the court’s rulings may have a fight on their hands.

Labor groups and lawyers representing injured workers say Tennessee employees already took a hit with the 2004 overhaul of the workers’ compensation laws.

Laws overhauled in ‘04

The state overhauled many of the workers’ compensation laws after Gov. Phil Bredesen spearheaded reform in 2004. The governor was concerned that the state’s workers’ comp laws were not only putting a huge financial strain on companies, but they were discouraging new businesses from relocating to Tennessee.

“Basically, what they did is they reduced the benefits you can get under work comp,” said Nashville attorney James Higgins, who represents injured workers.

It’s not clear what role the recent decisions will have on companies considering a move here.

“I don’t think those two decisions will have any impact at all on that issue,” said James Neeley, commissioner of the state Department of Labor & Workforce Development. The state became more attractive to companies after the reforms, he said.

Tennessee companies saved $269 million in insurance premiums from when the reforms went into effect through 2006, he said.

The recent Tennessee Supreme Court decision allowing benefits for telecommuters noted that about 34 million Americans work at home.

There are about 86,000 Tennesseans who telecommute, according to a 2006 American Community Survey of the U.S. Census Bureau.

“It’s huge and it’s getting bigger, and virtually every business that I represent has someone working from their home at some point and time,” Hill said.

The problem that the companies have is that supervisors won’t be around to see whether an employee is actually injured while working or was hurt doing something else. The other concern among employers is that they don’t know whether the court’s decision applies to people who just take work home.

Spate of claims unlikely

Higgins and other experts say it’s doubtful that the rulings will prompt a spate of claims from employees.

“You’re not going to be doing a dangerous blowtorch job at your house,” said Gregory Ramos, a Nashville lawyer and expert in workers’ compensation law.

It’s unclear how many companies offer on-site fitness opportunities or recreational centers.

“I think the Supreme Court decisions have been fair regarding both issues,” said Jerry Lee, president of the Tennessee AFL-CIO Labor Council.

He says the businesses are trying to reduce their costs, and they’ll have a difficult time changing the law.

“I just don’t think they’ll succeed in doing that,” Lee said. “Workers have taken such a hit in the last few years. … There’s got to be a stopping point somewhere.”

The Tennessee Self-Insurers’ Association recently partnered with the Tennessee Chamber of Commerce & Industry and the Tennessee Defense Lawyers Association in preparing an amicus curiae brief and participating in oral argument before the Tennessee Supreme Court regarding the case of Wait v. Travelers. Wait was a case in the Davidson County court in which the plaintiff was working from her home as a telecommuter. Her employer provided her with a fax machine, printer and computer.
Ms. Wait was taking a lunch break one day when she heard a knock at the door and answered the door. Her neighbor came in and attacked her and she suffered injuries as a result of that attack.

Ms. Wait filed a claim for workers’ compensation benefits against her employer. The case was dismissed by the Davidson County trial court on a motion for summary judgment by the defendant Travelers. The plaintiff appealed and the Supreme Court bypassed the Court of Appeals and accepted this case for argument due to the importance of the case and the potential broad-ranging effects of a decision.

The case was briefed and argued on behalf of the TNSIA by Attorney Terry Hill. Oral argument was heard on October 3rd. We will keep you posted on further developments in this lawsuit.

Following the meeting on Septmeber 18th at which the State Department of Commerce & Insurance accepted comments from interested parties regarding the initial draft of their Rules, the State has now indicated that the Rules will be redrafted taking into consideration the comments provided.  The redrafted Rules will then be published with another hearing held for comment.

As soon as the redrafted Rules are received, we will post them… stay tuned.

Upon action of its Executive Committee, the National Council of Self-Insurers has contributed $5,000 toward the lobbying effort to achieve passage of the Medicare Secondary Payer and Workers’ Compensation Settlement Act of 2007.  The bi-partisan Act was introduced in the House of Representatives in May 2007 and, if passed, will resolve the serious delays and confusion in the review of Workers’ Compensation, Medicare Set-Aside Settlements by the Centers for Medicare and Medicaid Services (CMS).

In June 2006, the National Council gave $10,000 and in February 2007, $1,000 to achieve the passage of the 2006 version of the Medicare Secondary Payer and Workers’ Compensation Settlement Act.  Since review procedures of the CMS remain impaired, federal legislation continues to be needed.
If you have any questions, please contact Larry Holt, Executive Director of the National Council of Self-Insurers.

TO: TNSIA MEMBERS

Re: Amicus Curiae Brief – Filed on behalf of TNSIA
Wait v. Travelers

I appeared for oral argument of our amicus position in this matter in front of the Supreme Court on October 3, 2007. Unfortunately there were two long criminal cases in front of me, so I wound up spending the whole morning in the courtroom.

The plaintiff’s attorney argued that the plaintiff was clearly covered by workers’ comp. The defendant argued that this case would not fall under the street risk doctrine. The Judges asked many questions of both of those attorneys.

When I started arguing, the Judges all hit me with questions. Justice Holder said that since the employer is receiving all of the benefit of this, they have relinquished the right to control the situation and should be liable for workers comp for this type of person. I pointed out to her that many of the people that work at home are single mothers who would be unable to juggle a schedule with their children if they were not afforded the opportunity to work at home. Justice Clark asked the plaintiff’s attorney if he felt as though employers should be liable for employees 24 hours a day. Justice Koch used the example from our brief and asked what would happen if a stove exploded and the employee was hurt. He pointed out that the employer would have no control over that situation.

Chief Justice Barker asked me if it was true that the plaintiff would be covered for this incident in the work place. My answer is that she probably would under the present state of the case law. He asked, “So why should she be covered now?”

We had an excellent brief and pointed out some significant pitfalls that could follow from an adverse ruling in this matter. It is very difficult to know how the Judges were leaning.

One possible ruling by the Court would be to strike down a summary judgment that was issued by the trial judge and to send this back for trial. I reminded the Judges that if they did that that they need to be careful of the language they use because it could open up a whole can of worms in terms of future cases involving home-based employees.

I anticipate that it could be 6 to 8 weeks or more before we get a decision from the Court. The court clerk came up to me afterword and said, “It’s good to get a workers’ comp case we can sink our teeth into.” I will let you know when I receive the decision of the court.

Very truly yours,
MANIER & HEROD
By: Terry L. Hill

TLH:af
cc: Raymond Leathers, on behalf of Tennessee Defense Lawyers Association
Bradley Jackson, Tennessee Chamber of Commerce & Industry