TNSIA News

The Tennessee Self-Insurers’ Association has prepared several bills for introduction in the Legislature on issues of importance to stakeholders of our organization. We are working with the Tennessee Chamber of Commerce & Industry to try and get these bills passed.

Please note House Bill 2129, sponsored by Rep. Fitzhugh, which is also Senate Bill 1797, sponsored by Sen. Southerland, is a bill that we are pushing hard. The bill is in two parts.

• Part I of the bill allows employers and employees to agree to cut off future medical if they can get the Department of Labor or the court to agree to allow them to do that. Under the 2004 Reform Act, closing medicals is basically prohibited.

• Part II of the bill attempts to define a repetitive injury and puts the burden on the employee to prove by clear and convincing evidence that an injury is due to a repetitive motion. It also defines a repetitive injury to mean an injury “directly and solely caused by repetitive use of the affected body part, as established by competent ergonomic and medical evidence, and which is not the result or natural consequence of the aging process or a congenital or developmental disorder.”

Please contact your senator and representative and enlist any lobbyist that you might employ to help us push this bill through the Legislature.

Attached are pdf copies of House Bill 2129 and Senate Bill 1797. To monitor their progress visit http://www.legislature.state.tn.us/.

House Bill 2129 pdf
Senate Bill 1797 pdf

Commissioner Leslie A. Newman was appointed by Governor Phil Bredesen to lead the Tennessee Department of Commerce and Insurance, which performs a variety of regulatory functions and also houses the state fire marshal’s office and consumer affairs.

A native of Dallas, Texas, Commissioner Newman has more than 20 years of experience in both public and private practice. She received a Bachelor of Arts degree from Johns Hopkins University in 1976, her Juris Doctor degree in 1979 from the Washington University School of Law in St. Louis, Missouri and a masters of Law in Urban Law from the Washington University School of Law in
1980.

From 1990 to 1994, she was an attorney with the Municipal Technical Advisory
Service (MTAS) of the University of Tennessee, Institute for Public Service,
providing legal assistance to municipal governments across the State as part of an inter-disciplinary consulting team, subsequently serving with the Metropolitan
Nashville Department of Law from 1994 to 2000. Her private practice since 2000
has included a focus on land use, zoning, urban and municipal law, and
governmental relations.

From 1994 to 2000, she served with the Metropolitan Nashville Department of Law as Associate Metropolitan Attorney. As the Associate Metropolitan Attorney, she advised the Office of the Mayor, the metropolitan council and various additional departments, boards, and commissions of Metro Government and was responsible for supervising the Metro Law Department’s approximately 25-attorney staff. From mid-2000 until early-2003, she chaired the Land Use and Zoning and the State and Local Government subgroups as a member of the Nashville law firm of Waller Lansden Dortch & Davis, PLLC.

Numerous publications to which she has contributed include: A Look at the
Americans with Disabilities Act - A Local Government Official’s Guide (MTAS 1992); D. Mandelker & R. Montgomery, Housing in America: Problems and Perspectives (1979); Solar Access Law: Protecting Access to Solar Energy Systems (Team Four, Inc., Planning Design & Development Consultants 1979); American Planning Association Newsletter.   Ms. Newman served as President of the Tennessee Municipal Attorneys Association from 1998 to 1999. She is a member of the Nashville and Tennessee Bar Associations. In March 2004, Ms. Newman was appointed by Governor Phil Bredesen to the Tennessee Advisory Commission on Intergovernmental Relations (TACIR). In addition, she currently serves as President of the Friends of the Library for Nashville and also is a board member of Nashville State Community College Foundation.

A local trial court has set aside a settlement that was effectuated at a Benefit Review Conference and signed by a specialist at the Department of Labor. The settlement was reached following a mediation. The parties entered into and executed a Settlement Agreement which, under the Workers’ Compensation Act, has the same authority as a court order. A trial court found that a BRC is a legal proceeding and that Tennessee law is clear that corporations are not permitted to represent themselves in any legal proceeding.

The court held that a corporation (insurance company or corporate employer) cannot have a non-attorney sign a settlement agreement at the Department of Labor. The court held that signing such a document by a non-attorney constitutes the unauthorized practice of law. The court held that the settlement approval was void since the person signing on behalf of the employer/insurance company was not an attorney.

T.C.A. §23-3-103 makes it a Class A misdemeanor for a person, firm, association or corporation to engage in the unauthorized practice of law.

In Pirtle v. Humboldt Utilities, No. W2005-02075-SC-WCM-CV (Tenn. Workers’ Comp. Panel Aug. 21, 2006), the Workers’ Compensation Appeals Panel reversed a judgment of the trial court which erroneously combined awards for an employee’s hand and back injuries. The Panel affirmed the trial court finding that both injuries were compensable.

In Pirtle, the Gibson County Chancery Court ruled that the plaintiff employee had suffered both an acute injury to his back, as well as a gradual carpal tunnel injury to both of his wrists. The proof at trial established that the plaintiff’s back injury occurred suddenly in March, 2002, while the plaintiff’s date of gradual injury for his carpal tunnel claim fell in May of 2004.

Since the plaintiff had returned to work with his pre-injury employer, the trial court awarded the plaintiff 2.5 times the 17% impairment rating assigned by the plaintiff’s IME physician. This 17% rating, however, comprised impairment for both the plaintiff’s back and arm claims.

On appeal, the Panel found that the trial court could not calculate an award based on one combined impairment rating for two injuries with two different dates of injury. The Panel remanded the case to trial for a computation of two separate awards for two separate injury dates.

This case should discourage the practice of many IME physicians to combine multiple impairment ratings for distinct injuries to create a single over-inflated rating. Each injury must now be evaluated by the trial court individually in cases involving multipliers.

The Tennessee Commissioner of Commerce and Insurance, Paula Flowers, has indicated to Governor Bredesen that she plans to step down in January, 2007.  She has listed financial considerations as her reason for leaving at that time.  No replacement has been named as yet.

On June 12, 2006, pursuant to the Rules of the Medical Impairment Rating Registry program, Dr. Walter Wheelhouse was notified that his privilege to serve on the MIR Registry was being suspended pending an investigation into his application for appointment to the Medical Impairment Rating Registry. 

Subsequent to that date, the Commissioner has concluded his investigation into the matter and determined that it is in the best interest of the Registry to terminate Dr. Wheelhouse’s privilege to serve.

In a ruling that provides a stamp of validity to the 2004 Workers’ Compensation Reform Act, the Tennessee Supreme Court has held the Act to be fully constitutional.  The Court’s rulings in JerryWayne Lynch v. City of Jellico, No. E2006-00208-SCR3-CV (Tenn. Aug. 30, 2006) and David A. Lozano v. Lincoln Memorial University, No. E2-6-00207-SC-R3-CV (Tenn. Aug. 30, 2006) reverse a decision of the Campbell County and Claiborne County Chancery Courts, respectively, which invalidated the Act on a number of constitutional grounds.