The Tennessee Workers' Compensation
Act was enacted in 1919. Prior to that, an injured employee could
sue his employer in a common law tort (personal injury) claim. In
such a claim, the employee had to prove that his injury was caused
by the employer's negligence Further, the employer had many
defenses available to it that could otherwise preclude an employee
from recovering. With the Workers' Compensation Act, these defenses
were no longer available, benefits were required by statute, and
the employee only had to prove that his injury arose out of, and
occurred within the course and scope of, his employment.
Workers' compensation is an area of the law regarding an injury
or illness that one may sustain while on-the-job. The remedies for
such injury or illness are prescribed in the Tennessee Code (as
opposed to personal injury, which is prescribed in case law).
Basically, it allows for one to receive medical benefits, some
compensation if you are off work, and compensation for any
permanent disability.
Q. If I am injured on the job,
what is the first thing I should do?
A. In order to
reduce the chance of your claim being denied, you should
immediately notify your supervisor of any on-the-job injury or
illness that you sustain during your employment. It is best that
this notice be in writing to avoid any disputes as to whether
notice was ever provided. (However, if you can establish that your
supervisor knew --- for example, your supervisor took you to the
hospital when you were injured, --- then this will suffice.) In
turn, your employer is required to file with the Tennessee
Department of Labor a form (First Report of Injury). (Note: notice
to your employer of your injury or illness is required and failure
to do so may result in your claim being denied.)
Q. How much are attorney
fees?
A. In general,
attorney fees are statutorily limited to 20% of your recovery. By
definition, this means that the fee is contingent upon your
successful prosecution of your claim.
Q. What types of injuries or
illnesses are covered by the Act?
A. Nearly any
injury or illness that arises out of, and incurred during the
course of, your employment, is covered. This includes the obvious
ones, like back or shoulder problems, as well as heart attacks and
strokes.
Q. How long do I have to notify
my employer of my work-related injury or illness?
A. You have 30 days
from the date of your injury or illness (or from the date you
should have discovered your injury or illness) in which to provide
notice to your Employer, or your claim will be denied. However, do
not wait. Report any work related injury or illness as soon as
possible. Delaying notice to your employer may complicate your
claim.
Q. How long do I have to file a
lawsuit with the courts?
A. You have one
year from the date of your injury or illness in which to file, or
your claim will be forever barred. (This is sometimes referred to
as the statute of limitations.) However, if you are being treated
by a workers' compensation carrier's approved physician, then the
one year time limit begins to run only after the workers'
compensation carrier makes the last voluntary medical payment.
Q. How do I know if I have a
compensable claim?
A. By definition,
you are entitled to workers' compensation benefits if, while within
the course and scope of your employment, you sustain an injury or
illness, or an aggravation of a pre-existing condition, that arises
out of such employment. Of course, such entitlement to benefits is
conditioned upon your fulfilling certain obligations (e.g.,
providing timely notice to your employer, etc.).
Q. Are all employers required
to provide workers' compensation coverage for their
employees?
A. No. Certain
employers are statutorily exempt from coverage. For example,
federal employees must look to the federal law for their benefits
(e.g., the Jones Act, the Longshoremen's and Harbor Workers'
Compensation Act and Federal Employers Liability Act). Also,
domestic servants, farm or agricultural laborers, and ski patrolmen
are exempt from coverage. Further, an employer must have at least
five employees regularly employed to be required to comply with the
Act. The State of Tennessee has elected to provide its employees
with the benefits as provided under the Tennessee Workers'
Compensation Act. Municipal governments vary as to whether they
have opted to provide benefits pursuant to the act.
Q. If my case goes to trial,
what can I expect?
A. Most cases are
settled prior to trial. However, if a case does go to trial, the
Tennessee Workers' Compensation Act provides that a claim shall be
adjudicated by a judge (or chancellor) without a jury. Generally, a
trial takes less than one day.
Q. Can my employer terminate me
for filing a workers' compensation claim?
A. No. In 1984, the
Tennessee Supreme Court held that if a claim for workers'
compensation benefits was a substantial factor in the employer's
motivation to terminate the employee's employment, the employee had
a separate claim for retaliatory discharge.
Q. How do I obtain treatment
for a compensable injury or illness?
A. Once your
employer has notice that you have a compensable workers'
compensation claim, it is required to provide you with a panel of
three or more doctors from which you will choose.
Q. If I am injured in another
state, is my injury still covered by workers'
compensation?
A. It depends. For
Tennessee to have jurisdiction over a claim, one of two conditions
must be met. Either the contract of your hiring must have occurred
in Tennessee, or your employer's principal place of business must
be in Tennessee. Many facts can complicate this otherwise simple
answer. For example, if someone in another state hired you by phone
here in Tennessee.
Q. Does it matter if my own
carelessness caused my injury?
A. Generally, no.
The Tennessee Workers' Compensation Act is no-fault, meaning that
you are entitled to benefits regardless that you, a co-worker, or
even your employer was at fault. However, intentional injuries are
excluded from coverage. Further, if your employer has a statutorily
accepted 'drug free workplace', and you are found to have certain
drugs in your system, you will likely be denied coverage.
Additionally, certain facts can make the answer more difficult. For
example, coverage may or may not be available if horseplay was
involved, or if your injury or illness was an act of God.
Q. If I am injured on the job,
to what benefits am I entitled?
A. In general, you
are entitled to medical coverage, temporary disability benefits and
permanent disability benefits. In short, temporary disability
benefits are those you receive while recovering from your injury or
illness. These benefits include medical treatment for your injuries
or illness, coverage for prescribed medication and prosthetics,
and, if you are off work as a result of the injury or illness,
payment of a portion of your average weekly wages. Once you have
reached maximum medical improvement, you may be entitled to
permanent disability benefits. These benefits could include future
med coverage, and a permanent disability award.
Q. If I am off work with a
compensable claim, will I receive any compensation in lieu of
salary? If so, how much?
A. Generally,
unless your physician keeps you off work for more than 7 days, you
do not receive any temporary disability benefits. If you are off
work for a period of time between 8 and 14 days, you are entitled
to 2/3 of your average weekly wage for those days (known as your
'comp rate'). If your injury or illness keeps you off work beyond
this period of time, you are entitled to your comp rate for that
period of time, plus for the first 7 days you were off. (Average
weekly wage is computed by averaging your income for the previous
52 weeks. If you have been employed less than 52 weeks, then it is
the weekly average for the time you have been with this employer).
Wages to be included in the calculation include overtime, bonuses,
etc. There is a maximum and minimum weekly benefit, which generally
changes around July 31 each year.
Q. Why should I get an
attorney?
A. When you
consider that an attorney's fee to represent you in a claim is
relatively small (20% of your recovery), and that the benefits can
be significant, the choice seems rather clear. If you do not
recover anything, there is no attorney fee. An attorney will not
only handle the administrative claim procedures, but he or she can
provide assistance with the selection of a physician, ensure that
you receive all of the benefits to which you are entitled, guide
you through the maze of rules and regulations governing your claim,
and answer any questions that you may have. Further, if you have an
experienced attorney, he or she knows the value of your claim and
can maximize your recovery. But perhaps the most important reason
to retain the services of an attorney is that the adjuster for the
workers' compensation carrier is experienced (through training and
frequent seminars), will try to minimize and limit your recovery,
and has an attorney available.
Q. Can I sue my employer for
personal injury?
A. Usually not.
Unless your employer intended to cause you injury, or if they fail
to carry workers' compensation insurance coverage, you are limited
to filing a workers' compensation claim.
Q. Can I sue someone other than
my employer if they were the cause of my injury?
A. If your injury
was caused by a third party other than your employer or a
co-employee, you may be able to bring an additional third party
claim for personal injury. However, the workers' compensation
carrier has a right to be reimbursed for all payments they made on
your behalf.
Q. During my treatment, what
can I do to aid in ensuring that my claim will not be denied, and
that I will receive all the benefits to which I am
entitled?
A. You should be
forthright with all of your health care providers. When asked,
provide as complete a history about prior injuries as possible. If
you are in pain, be sure you clearly express this. Let him or her
know everywhere you hurt. Do not say you are 'fine' or 'okay' if,
in fact, you are not. However, do not add to your symptoms, and do
not exaggerate your degree of pain or limitation. Your health care
provider will likely recognize this and make notations in your file
to that effect. If you are prescribed physical therapy, give it
your best effort. Your physical therapist will, likewise, notate
exaggeration if he or she recognizes it. Further, be sure to save
all of the paperwork provided to you by your employer and health
care provider. It may help your attorney if you maintain a log of
dates you treated, a summary of the treatment, and of any other
significant event.
*Keep in mind that answers to these
questions are generalizations only. Any given case may provide a
set of facts that alters any given answer.
