TNSIA News

View Adjuster Certification Rules

The purpose of this memorandum is to inform you that actuarial opinion reports are now required annually instead of biennially pursuant to a revision to Tenn. Code Annotated 50-6-405(b)(2). Please see the attached revision act.

State of Tennessee – AO Annually Requirement

In an attempt to make it easier for entities to report workers’ compensation settlements that contemplate future medical (including prescription drug) treatments, the Centers for Medicare & Medicaid Services (CMS) proposes, by calendar year 2010, to streamline the WCMSA proposal submission process for the various affected stakeholders by making available an Internet web-based portal or interface. The benefits of an Internet web-based portal or interface for submitters and other affected workers’ compensation stakeholders include, but are not limited to, the following:

• Allows for quicker creation of new WCMSA cases for processing.
• Facilitates tracking of the status of submitted WCMSA cases.
• Provides for almost instantaneous feedback to the submitter.
• Reduces the need for mailings.

Before launching development efforts in this direction, however, CMS wishes to gauge the workers’ compensation industry’s readiness for this submission methodology. Please review and complete the “Survey of Workers’ Compensation Medicare Set-Aside (WCMSA) Process,”  Your completed response should be emailed (with “Survey” in the Subject line) to the MSP Central mailbox at: mspcentral@cms.hhs.gov no later than July 31, 2009.

Source

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. §50-6-241(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.

Terry L. Hill, Executive Director

MANDATORY INSURANCE REPORTING: The Medicare, Medicaid, and SCHIP Extension Act of 2007 has created mandatory reporting requirements for Liability Insurance (including Self-Insurance), No Fault Insurance, and Workers Compensation. For additional information, please refer to the following website from the Centers for Medicare and Medicaid Services (CMS). In addition, the MSIA encourages its members to subscribe for updates from CMS. On the page titled Overview, go to the heading “Related Links Inside CMS” and click on the link “For e-mail updates and notifications.”

http://www.cms.hhs.gov/MandatoryInsRep/

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The first meeting of the group seeking to coordinate the response of the business community to the proposed National Commission on State WC laws (HR 635) has been scheduled from 2:00 to 4:00 p.m. Eastern on Tuesday, April 7, 2009 in the 3M Room on the first floor of the US Chamber of Commerce building, 1615 H Street, NW, Washington, DC, 20062.

Participation is also available by conference call by calling:

866-433-0017 – Code *1454313* (note: the stars must be entered before and after the numbers).

Thanks to the US Chamber for hosting the meeting and conference call. The agenda will include the following items:

I.  Introductions and opening remarks by Doug Holmes, President, UWC and Randel Johnson, Vice President, Labor, Immigration & Employee Benefits, U.S. Chamber of Commerce

II.  History of 1972 Report of National Commission on State Workmen’s Comp Laws

III. Review of HR 635

IV. Status of discussions with Rep. Baca’s staff, House Ed & Labor Committee and others

V.  Positions on HR 635 already taken – WILG, AAJ, Oklahoma State Chamber, Others

VI. Development of coordinated positions
a.       Opposition
b.      Research
c.       Reform

VII. Lobbying/Political strategy and outreach

VIII. Next meeting

We will be referring to the following documents  during the meeting.

1. 1972 Report of the National Commission on State Workmen’s Compensation Laws
2. Search Legislation HR 635 by Bill Number Here
   

Members of the Tennessee Self-Insurer’s Association:

On January 22, 2009, Congressman Joe Baca, (D-California), introduced H.R. 635 in the House of Representatives. H.R. 635 would establish a national commission to review the workers’ compensation laws of the fifty states.  The 14-member bi-partisan body would determine whether the workers’ compensation laws of each state provide prompt and equitable systems of compensation as well as medical care for work-related injuries.  The bill has been referred to the House Committee on Education and Labor.

The Commission would consist of the following: a member appointed by the President, who will be the chairperson; a member appointed by the Senate majority leader in consultation with the House majority leader; who would be the vice chairperson; two members appointed by the House majority leader; two members appointed by the House minority leader; two members appointed by the Senate majority leader and two members appointed by the Senate minority leader.

The Secretaries of Labor, Commerce, Health and Human Services and Education would be ex officio members of the commission.
Through a press release, Representative Baca said that, “More than 35 years have passed since our government took a serious look at the effectiveness of workers’ compensation laws. Access to proper benefits and medical care after on the job injuries is a right every American worker deserves. I am hopeful this legislation will bring us closer to updating and modernizing our state workers’ compensation laws to ensure they remain effective in this new century.”  Representative Baca observed that the federal government has not reviewed workers’ compensation laws since 1972, when the Nixon administration authorized the creation of a national commission that described many states’ laws as “inequitable and inadequate.”

View the complete H.R. 635

You can zoom in by right-clicking on the document or clicking on the various controls at the top right corner of document.