TCA § 50-6-102 — Chapter definitions

As used in this chapter, unless the context otherwise requires: “Administrator” means the chief administrative officer of the bureau of workers' compensation of the department of labor and workforce development; “AMA guides” means the 6th edition of the American Medical Association Guides to the Evaluation of Permanent Impairment, American Medical Association, until a new edition is designated by the general assembly in accordance with § 50-6-204(k)(2)(A). The edition that is in effect on the date the employee is injured is the edition that shall be applicable to the claim; “Average weekly wages” means the earnings of the injured employee in the employment in which the injured employee was working at the time of the injury during the period of fifty-two (52) weeks immediately preceding the date of the injury divided by fifty-two (52); but if the injured employee lost more than seven (7) days during the period when the injured employee did not work, although not in the same week, then the earnings for the remainder of the fifty-two (52) weeks shall be divided by the number of weeks remaining after the time so lost has been deducted; Where the employment prior to the injury extended over a period of less than fifty-two (52) weeks, the method of dividing the earnings during that period by the number of weeks and parts of weeks during which the employee earned wages shall be followed; provided, that results just and fair to both parties will be obtained; Where, by reason of the shortness of the time during which the employee has been in the employment of the employer, it is impracticable to compute the average weekly wages as defined in this subdivision (3), regard shall be had to the average weekly amount that, during the first fifty-two (52) weeks prior to the injury or death, was being earned by a person in the same grade, employed at the same work by the same employer, and if there is no such person so employed, by a person in the same grade employed in the same class of employment in the same district; Wherever allowances of any character made to any employee in lieu of wages are specified as part of the wage contract, they shall be deemed a part of the employee's earnings; [Deleted by 2013 amendment, effective July 1, 2014.] “Bureau” or “bureau of workers' compensation” means the bureau of workers' compensation of the department of labor and workforce development; “Case management” means medical case management or the ongoing coordination of medical care services provided to an injured or disabled employee on all cases where medical care expenses are expected to exceed a threshold; “Commissioner” means the commissioner of labor and workforce development; “Construction design professional” means: Any person possessing a valid registration or license entitling that person to practice the technical profession of architecture, engineering, landscape architecture or land surveying in this state; Any corporation, partnership, firm or other legal entity authorized by law to engage in the technical profession of architecture, engineering, landscape architecture or land surveying in this state; or Any person, firm or corporation providing interior space planning or design in this state; “Court of workers' compensation claims” means the adjudicative function within the bureau of workers' compensation; “Department” means the department of labor and workforce development; [Deleted by 2015 amendment, effective May 4, 2015.] “Employee” includes every person, including a minor, whether lawfully or unlawfully employed, the president, any vice president, secretary, treasurer or other executive officer of a corporate employer without regard to the nature of the duties of the corporate officials, in the service of an employer, as employer is defined in subdivision (13), under any contract of hire or apprenticeship, written or implied. Any reference in this chapter to an employee who has been injured shall, where the employee is dead, also include the employee's legal representatives, dependents and other persons to whom compensation may be payable under this chapter; “Employee” includes a sole proprietor, a partner, or a member of a limited liability company who devotes full time to the proprietorship, partnership, or limited liability company, respectively, and who elects to be included in the definition of “employee” by filing written notice of the election on a form prescribed by the bureau with the insurer or, if there is no insurer, with the partnership, proprietorship, or limited liability company at least thirty (30) days before the occurrence of any injury or death. Such a proprietor, partner, or member may at any time withdraw the election by giving notice of the withdrawal to the insurer or, if there is no insurer, with the partnership, proprietorship, or limited liability company. Such a partner, proprietor, or limited liability company may at any time revoke the election for the term of the policy by giving notice in the same manner. Notification given pursuant to this subdivision (12)(B) does not become effective until it is filed with the proper entity; The provisions of this subdivision (12) allowing a sole proprietor or a partner to elect to come under this chapter shall not be construed to deny coverage of the sole proprietor or partner under any individual or group accident and sickness policy the sole proprietor or partner may have in effect, in cases where the sole proprietor or partner has elected not to be covered by this chapter, for injuries sustained by the sole proprietor or partner that would have been covered by this chapter had the election been made, notwithstanding any provision of the accident and sickness policy to the contrary. Nothing in this section shall require coverage of occupational injuries or sicknesses, if occupational injuries or sicknesses are not covered under the terms of the policy without reference to eligibility for workers' compensation benefits; In a work relationship, in order to determine whether an individual is an “employee,” or whether an individual is a “subcontractor” or an “independent contractor,” the following factors shall be considered: The right to control the conduct of the work; The right of termination; The method of payment; The freedom to select and hire helpers; The furnishing of tools and equipment; Self-scheduling of working hours; and The freedom to offer services to other entities; and A premium shall not be charged by an insurance company for any individual determined to be an independent contractor pursuant to this subdivision (12)(D); “Employee” does not include a construction services provider, as defined in § 50-6-901 , if the construction services provider is: Listed on the registry established pursuant to part 9 of this chapter as having a workers' compensation exemption and is working in the service of the business entity through which the provider obtained such an exemption; Not covered under a policy of workers' compensation insurance maintained by the person or entity for whom the provider is providing services; and Rendering services on a construction project that: Is not a commercial construction project, as defined in § 50-6-901 ; or Is a commercial construction project, as defined in § 50-6-901 , and the general contractor for whom the construction services provider renders construction services complies with § 50-6-914(b)(2) ; “Employer” includes any individual, firm, association or corporation, the receiver or trustee of the individual, firm, association or corporation, or the legal representative of a deceased employer, using the services of not less than five (5) persons for pay, except as provided in § 50-6-902 , and, in the case of an employer engaged in the mining and production of coal, one (1) employee for pay. If the employer is insured, it shall include the employer's insurer, unless otherwise provided in this chapter; “Injury” and “personal injury” mean an injury by accident, a mental injury, occupational disease including diseases of the heart, lung and hypertension, or cumulative trauma conditions including hearing loss, carpal tunnel syndrome or any other repetitive motion conditions, arising primarily out of and in the course and scope of employment, that causes death, disablement or the need for medical treatment of the employee; provided, that: An injury is “accidental” only if the injury is caused by a specific incident, or set of incidents, arising primarily out of and in the course and scope of employment, and is identifiable by time and place of occurrence, and shall not include the aggravation of a preexisting disease, condition or ailment unless it can be shown to a reasonable degree of medical certainty that the aggravation arose primarily out of and in the course and scope of employment; An injury “arises primarily out of and in the course and scope of employment” only if it has been shown by a preponderance of the evidence that the employment contributed more than fifty percent (50%) in causing the injury, considering all causes; An injury causes death, disablement or the need for medical treatment only if it has been shown to a reasonable degree of medical certainty that it contributed more than fifty percent (50%) in causing the death, disablement or need for medical treatment, considering all causes; “Shown to a reasonable degree of medical certainty” means that, in the opinion of the physician, it is more likely than not considering all causes, as opposed to speculation or possibility; The opinion of the treating physician, selected by the employee from the employer's designated panel of physicians pursuant to § 50-6-204(a)(3) , shall be presumed correct on the issue of causation but this presumption shall be rebuttable by a preponderance of the evidence; (A) “Maximum total benefit” means the sum of all weekly benefits to which a worker may be entitled; For injuries occurring on or after July 1, 1992, but before July 1, 2009, the maximum total benefit shall be four hundred (400) weeks times the maximum weekly benefit, except in instances of permanent total disability; For injuries occurring on or after July 1, 2009, but before July 1, 2014, the maximum total benefit shall be four hundred (400) weeks times one hundred percent (100%) of the state's average weekly wage, as determined pursuant to subdivision (16)(B), except in instances of permanent total disability. Temporary total disability benefits paid to the injured worker shall not be included in calculating the maximum total benefit; For injuries occurring on or after July 1, 2014, the maximum total benefit shall be four hundred fifty (450) weeks times one hundred percent (100%) of the state's average weekly wage, as determined pursuant to subdivision (16)(B), except in instances of permanent total disability. Temporary total disability benefits paid to the injured worker before the employee attains maximum medical improvement shall not be included in calculating the maximum total benefit; (A) (i) “Maximum weekly benefit” means the maximum compensation payable to the worker per week; For injuries occurring between July 1, 1990, and June 30, 1991, the maximum weekly benefit shall be two hundred seventy-three dollars ($273) per week; For injuries occurring on or after July 1, 1991, and before August 1, 1992, the maximum weekly benefit shall be two hundred ninety-four dollars ($294) per week; For injuries occurring on or after August 1, 1992, and through June 30, 1993, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to seventy-eight percent (78%) of the state's average weekly wage, as determined by the department; For injuries occurring on or after July 1, 1993, and through June 30, 1994, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to eighty-two and four-tenths percent (82.4%) of the state's average weekly wage, as determined by the department; For injuries occurring on or after July 1, 1994, and through June 30, 1995, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to eighty-six and eight-tenths percent (86.8%) of the state's average weekly wage, as determined by the department; For injuries occurring on or after July 1, 1995, and through June 30, 1996, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to ninety-one and two-tenths percent (91.2%) of the state's average weekly wage, as determined by the department; For injuries occurring on or after July 1, 1996, and through June 30, 1997, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to ninety-five and six-tenths percent (95.6%) of the state's average weekly wage as determined by the department; For injuries occurring on or after July 1, 1997, and through June 30, 2004, the maximum weekly benefit shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to one hundred percent (100%) of the state's average weekly wage as determined by the department; For injuries occurring on or after July 1, 2004, the maximum weekly benefit for permanent disability benefits shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to one hundred percent (100%) of the state's average weekly wage, as determined by the department; and (a) For injuries occurring on or after July 1, 2004, through June 30, 2005, the maximum weekly benefit for temporary disability benefits shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to one hundred five percent (105%) of the state's average weekly wage, as determined by the department; and For injuries occurring on or after July 1, 2005, the maximum weekly benefit for temporary disability benefits shall be sixty-six and two thirds percent (66 2/3%) of the employee's average weekly wage up to one hundred ten percent (110%) of the state's average weekly wage, as determined by the department; As used in subdivision (15), the state average weekly wage shall be determined as of the preceding January 1, and shall be adjusted annually using the data from the bureau and shall be effective on July 1 of each year; “Mental injury” means a loss of mental faculties or a mental or behavioral disorder, arising primarily out of a compensable physical injury or an identifiable work related event resulting in a sudden or unusual stimulus, and shall not include a psychological or psychiatric response due to the loss of employment or employment opportunities; “Minimum weekly benefit” means the minimum compensation per week payable to the worker, which shall be fifteen percent (15%) of the state's average weekly wage, as determined by the department; “Specialty practice group” means a group of Tennessee licensed physicians, surgeons, or chiropractors providing medical care services of the same or similar medical specialty as each other and operating out of the same physical location; and “Utilization review” means evaluation of the necessity, appropriateness, efficiency and quality of medical care services, including the prescribing of one (1) or more Schedule II, III, or IV controlled substances for pain management for a period of time exceeding ninety (90) days from the initial prescription of such controlled substances, provided to an injured or disabled employee based on medically accepted standards and an objective evaluation of those services provided; provided, that “utilization review” does not include the establishment of approved payment levels, a review of medical charges or fees, or an initial evaluation of an injured or disabled employee by a physician specializing in pain management. [Deleted by 2013 amendment, effective July 1, 2014.] Acts 1919, ch. 123, § 2; 1923, ch. 84, § 2; Shan. Supp., § 3608a138; Code 1932, § 6852; Acts 1941, ch. 90, § 1; 1947, ch. 139, § 1; C. Supp. 1950, § 6852; Acts 1961, ch. 184, § 1; 1963, ch. 362, § 2; 1971, ch. 300, § 1; 1977, ch. 339, § 1; 1978, ch. 499, § 1; 1978, ch. 687, § 1; impl. am. Acts 1980, ch. 534, §§ 1, 3; Acts 1981, ch. 239, § 1; T.C.A. (orig. ed.), § 50-902; Acts 1985, ch. 393, § 1; 1988, ch. 923, § 1; 1990, ch. 990, § 1; 1991, ch. 225, § 1; 1992, ch. 900, §§ 2, 19, 20, 28; 1997, ch. 330, § 1; 1999, ch. 520, § 41; 2002, ch. 833, §§ 4, 5; 2004, ch. 962, §§ 22, 23, 32; 2008, ch. 1025, § 1; 2009, ch. 599, §§ 1-3; 2010, ch. 1149, §§ 3, 14; 2011, ch. 416, § 8; 2011, ch. 422, § 1; 2012, ch. 1100, § 1; 2013, ch. 282, § 2; 2013, ch. 289, §§ 4-9; 2014, ch. 903, § 1; 2015, ch. 188, § 3; 2015, ch. 341, §§ 14, 15, 18; 2016, ch. 816, § 1; 2017, ch. 344, § 2. Compiler's Notes. Acts 2004, ch. 962, § 42 provided that: The general assembly recognizes that significant cost savings will result from the implementation of this bill. It is in the best interest of the citizens of Tennessee that the cost savings be passed to the entities that have paid faithfully workers' compensation premiums in order to ensure the economic well-being of their employees. It is the intent and purpose of the general assembly that workers' compensation premiums be adjusted downward within fifteen (15) months of July 1, 2004, to reflect the cost savings resulting from the provisions of the act. If a workers' compensation policy is subject to renewal during the fifteen (15) month period, adjustments to the policy may be made at that time. It is the intent of the general assembly that the savings of the act shall routinely be reflected in future filings through the advisory prospective loss cost filing system, pursuant to §§ 56-5-106(b) and 50-6-402. Nothing in this section shall be construed as amending or affecting the procedures for filing and approval of rates set forth in title 56, chapter 5. Acts 2010, ch. 1149, § 17 provided that the provisions of the act shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act. Acts 2010, ch. 1149, § 19, provided in part that: The secretary of state is authorized to promulgate rules and regulations to effectuate the purposes of the act, which added subdivision (E) in the definition of “employee”. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, that the secretary of state shall permit: Construction services providers not currently licensed by the board for licensing contractors, but who qualify for a construction services provider registration, to apply for a workers' compensation exemption on or after January 1, 2011; and Construction services providers licensed by the board for licensing contractors to apply for a workers' compensation exemption on or after February 1, 2011. Acts 2011, ch. 416, § 10 provided that §§ 3-9 of the act, which amended §§ 50-6-102(12) , 50-6-204(a)(1) and (2), 50-6-206(a)(2) and (b) and 50-6-301 , shall apply to injuries occurring on or after June 6, 2011. Acts 2011, ch. 422, § 13 provided that if any policyholder chooses to cancel a policy of insurance as a result of obtaining an exemption pursuant to the act and cancels prior to February 1, 2012, then the policy of insurance shall be canceled as if the insured were retiring from the business in which the policy of insurance was required. Acts 2012, ch. 1100, § 5 provided that the act, which amended the definition of “utilization review”, shall apply to pain management, including the prescription of Schedule II, III, or IV controlled substances, prescribed on or after July 1, 2012. Acts 2013, ch. 289, § 103 provided that the act, which amended the definitions of “AMA guides”, “injury”, “maximum total benefit”, “mental injury” and “minimum weekly benefit”, deleted the definition of “workers' compensation specialist”, and added the definition of “court of workers' compensation claims”, shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.” Amendments. The 2013 amendment by ch. 282, effective July 1, 2014, deleted the definition of “Benefit review conference” which read: “ ‘Benefit review conference’ means a nonadversarial, informal dispute resolution proceeding to mediate and resolve workers' compensation disputes as provided in this chapter;”. The 2013 amendment by ch. 289, effective July 1, 2014, substituted “§ 50-6-204(k)(1)(A) ” for “§ 50-6-204(d)(3)(C) ” in the definition of “AMA guides”; rewrote the definition of “injury” which read: “ ‘Injury’ and ‘personal injury’:“(A) Mean an injury by accident, arising out of and in the course of employment, that causes either disablement or death of the employee; provided, that:“(i) An injury is ‘accidental’ only if the injury is caused by a specific incident, or set of incidents, arising out of and in the course of employment, and is identifiable by time and place of occurrence; and “(ii) The opinion of the physician, selected by the employee from the employer's designated panel of physicians pursuant to §§ 50-6-204(a)(4)(A) or (a)(4)(B), shall be presumed correct on the issue of causation but said presumption shall be rebutted by a preponderance of the evidence;“(B) Include a mental injury arising out of and in the course of employment; and“(C) Do not include:“(i) A disease in any form, except when the disease arises out of and in the course and scope of employment; or“(ii) Cumulative trauma conditions, hearing loss, carpal tunnel syndrome, or any other repetitive motion conditions unless such conditions arose primarily out of and in the course and scope of employment;”; rewrote the definition of “maximum total benefit” which read: “ ‘Maximum total benefit’ means the sum of all weekly benefits to which a worker may be entitled; “(A) For injuries occurring between July 1, 1990, and June 30, 1991, the maximum total benefit shall be one hundred nine thousand two hundred dollars ($109,200);“(B) For injuries occurring on or after July 1, 1991, and before August 1, 1992, the maximum total benefit shall be one hundred seventeen thousand six hundred dollars ($117,600);“(C) For injuries occurring on or after July 1, 1992, the maximum total benefit shall be four hundred (400) weeks times the maximum weekly benefit except in instances of permanent total disability; and “(D) For injuries occurring on or after July 1, 2009, the maximum total benefit shall be four hundred (400) times one hundred percent (100%) of the state's average weekly wage, as determined pursuant to subdivision (14)(B), except in instances of permanent total disability. Temporary total disability benefits paid to the injured worker shall not be included in calculating the maximum total benefit;”; rewrote the definition of “ minimum weekly benefit” which read: “ ‘Minimum weekly benefit’ means the minimum compensation per week payable to the worker;“(A) For injuries occurring between July 1, 1985, and June 30, 1986, the minimum weekly benefit shall be twenty dollars ($20.00) per week;“(B) For injuries occurring between July 1, 1986, and June 30, 1987, the minimum weekly benefit shall be twenty-five dollars ($25.00) per week;“(C) For injuries occurring between July 1, 1987, and June 30, 1988, the minimum weekly benefit shall be thirty dollars ($30.00) per week;“(D) For injuries occurring on or after July 1, 1988, and before July 1, 1993, the minimum weekly benefit shall be thirty-five dollars ($35.00) per week; and“(E) For injuries occurring on or after July 1, 1993, the minimum weekly benefit shall be fifteen percent (15%) of the state's average weekly wage, as determined by the department;”; rewrote the definition of “mental injury” which read: “ ‘Mental injury’ means a loss of mental faculties or a mental or behavioral disorder where the proximate cause is a compensable physical injury resulting in a permanent disability, or an identifiable work-related event resulting in a sudden or unusual mental stimulus. A mental injury shall not include a psychological or psychiatric response due to the loss of employment or employment opportunities;”; and deleted the definition of “workers' compensation specialist” or “specialist” which read: “ ‘Workers' compensation specialist’ or ‘specialist’ means a department employee who provides information and communication services regarding workers' compensation for employees and employers, and who conducts benefit review conferences and performs other duties as provided in this chapter.”; and added the definition of “court of workers' compensation claims”. The 2014 amendment added the definition of “specialty practice group”. The 2015 amendment by ch. 188, in the definition of “employee”, made stylistic changes throughout (D) and added “A premium shall not be charged by an insurance company for any individual determined to be an independent contractor pursuant to this subdivision (12)(D)”. The 2015 amendment by ch. 341, effective May 4, 2015, deleted the definition of “Division” or “division of workers' compensation” which read: “Division” or “division of workers' compensation” means the division of workers' compensation of the department of labor and workforce development;”; substituted “bureau” for “division” throughout the section; and added the definition of “Bureau” or “bureau of workers' compensation”. The 2016 amendment substituted “a sole proprietor, a partner, or a member of a limited liability company who devotes full time to the proprietorship, partnership, or limited liability company, respectively,” for “a sole proprietor or a partner who devotes full time to the proprietorship or partnership” in (B) of the definition of “employee”. The 2017 amendment in (B) in the definition of “Employee”, inserted “who” preceding “elects”, inserted “on a form prescribed by the bureau” substituted “insurer or, if there is no insurer, with the partnership, proprietorship, or limited liability company” for “bureau” near the end and substituted a period for “, and” at the end of the first sentence, in the second sentence, added “Such a proprietor, partner, or member” at the beginning and substituted “insurer or, if there is no insurer, with the partnership, proprietorship, or limited liability company.” for “bureau” at the end, and added the third sentence. Effective Dates. Acts 2013, ch. 282, § 10. July 1, 2014. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013. Acts 2014, ch. 903, § 14. July 1, 2014. Acts 2015, ch. 188, § 4. April 22, 2015. Acts 2015, ch. 341, § 19. May 4, 2015. Acts 2016, ch. 816, § 11. April 14, 2016. Acts 2017, ch. 344, § 12. May 9, 2017. Attorney General Opinions. A member of the Underground Storage Tanks and Solid Waste Disposal Control Board is a state official. While state officials are treated as “state employees” for some purposes, state officials are not treated as “state employees” for the purpose of procuring a public contract. If a contractor has an employee or subcontractor who serves as a member of the Underground Storage Tanks and Solid Waste Disposal Control Board, the contractor may respond to a request for proposal or a request for qualifications to provide services under a contract with a state agency whose services are not overseen by the Board when the Board member does not have a duty “to vote for, let out, overlook, or in any manner superintend any work or any contract” in which the state agency is interested. The contractor may not contract with a state agency if the Board member has a duty “to vote for, let out, overlook, or in any manner superintend any work or any contract” in which the state agency is interested and the Board member is “directly interested” in the contract). The only exception is the “sole supplier” provision. If the Board member is “directly interested” in the contract but is the sole supplier of the services in a municipality or county, the Board member is treated as being only “indirectly interested” in the contract. In that instance, for the contract to be valid, the Board member must publically acknowledge his or her interest. OAG 18-20, 2018 Tenn. AG LEXIS 19 (4/23/2018). Workers' Compensation Appeals Board Decisions. An employee was hired as a seasonal worker at the employer's distribution center. During the recruiting process, the employee was informed that transportation to and from the distribution center would be available through a third party, but a fee would be charged for this service. During a ride from the distribution center to her hometown, the bus on which the employee was riding caught fire and, while evacuating the bus, the employee was allegedly injured. She sought medical and temporary disability benefits at an expedited hearing. The Workers' Compensation Appeals Board held that the employee did not come forward with sufficient evidence at the expedited hearing to show she would likely prevail at trial in proving the case falls within an exception to the general rule of non-compensability in “coming and going” cases. Smith v. Macy’s Corporate Services, 2019 TN Wrk Comp App Bd LEXIS 2. It was undisputed that the employer did not provide transportation or reimburse transportation costs for its seasonal employees. Moreover, the employee was not "on the clock" at the time of the injury, but was returning home after her shift was over. In addition, the trip between her home and the employer's facility was not a substantial part of the service for which the employee was employed and compensated. Furthermore, the employer did not require the employee to use the bus but merely facilitated the use of that service to its seasonal workers as a convenience. Smith v. Macy’s Corporate Services, 2019 TN Wrk Comp App Bd LEXIS 2. The trial court’s expedited hearing order determining the employee presented sufficient proof that she is likely to succeed at trial and ordering the employer to authorize the revision surgery to the employee’s pre-existing knee replacement was affirmed, where there was no basis in this record to determine that the trial court erred in accepting the causation opinion of the authorized treating physician over that of the employer's medical expert. Foster v. Andy Frain Services, Inc., 2019 TN Wrk Comp App Bd LEXIS 10. An employee, a mental health aid employed in a residential group home for teens, alleged suffering injuries as a result of physical altercations occurring in the group home. The employer did not dispute the occurrence of the incidents and acknowledged that the employee reported suffering headaches as a result, but denied that the employee's need for recommended psychiatric treatment arose primarily out of and in the course and scope of her employment. Based upon the authorized physician's referral of the employee to specialists for additional treatment and his taking the employee out of work until she is seen by such specialists, the Workers Compensation Appeal Board concluded the evidence supported the trial court's determination that the employee is entitled to the medical benefits and temporary disability benefits ordered by the trial court. Gautreaux v. Hermitage Hall, 2019 TN Wrk Comp App Bd LEXIS 12. The employee, a supervisor at a grain processing facility, suffered a heart attack and died while at work. The employee's surviving spouse brought a claim for death benefits, asserting the employee's heart attack was due to work-related physical exertion, environmental exposures, and mental stress. However, she could not prevail on her contention that physical exertion caused the employee's heart attack because there was no evidence he performed any physical labor on the day of his heart attack. Additionally, the mental stress alleged by the surviving spouse, namely pressure to learn the new computer program, was the type of ordinary stress associated with the employee's job and was therefore not compensable. Further, the medical experts' testimony on dust inhalation's connection to heart attacks was inconclusive and the lay witness testimony on the level of dust at the employer's facility was similarly equivocal. The medical proof viewed as a whole fell short of that required to establish a compensable injury. Mitchell v. Bunge North America, 2019 TN Wrk Comp App Bd LEXIS 15. An employee alleged suffering a low back injury while performing her work duties. Based on the authorized physician's opinion that the work incident aggravated the employee's pre-existing condition but that greater than 51% of the cause was related to the employee's degenerative pre-existing process, the employer denied the claim. The employee sought treatment from another physician whose responses to a questionnaire indicated the work incident more likely than not caused the employee's need for medical treatment. Following an evidentiary hearing, the trial court awarded medical benefits and ordered the employer to authorize further treatment with the physician sought out by the employee. The employer has appealed. On appeal, the board found that the employee presented sufficient medical proof to rebut the statutory presumption of correctness afforded the authorized physician's causation opinion In contrast to the authorized physician's opinions, the second physician linked the employee's symptoms to the work incident and provided an opinion that the employment "more likely than not" caused her need for medical treatment. While the second physician's opinions may be insufficient to establish causation by a preponderance of the evidence at trial, those opinions, considered with the employee's lay testimony, were sufficient evidence to rebut the presumption of correctness accorded the authorized physician's causation opinion and to allow the trial court to determine that the employee would likely prevail at a hearing on the merits. Blevins v. Southern Champion Tray, LP, 2019 TN Wrk Comp App Bd LEXIS 29 An employee alleged he suffered injuries when a large airplane tire rolled off a cart and struck him. In addition to physical injuries to his left shoulder and neck, the employee asserted he suffered depression due to his injuries and the loss of his job. He requested a panel of specialists after receiving a referral for a psychological evaluation from his authorized pain management physician. The employer declined to provide a panel of psychologists. The trial court ordered the employer to provide a panel of specialists in response to a pain management specialist's referral for psychological evaluation and treatment. An authorized physician had referred the employee to the pain management specialist, who provided authorized pain management treatment. The pain management specialist, an authorized physician, made a referral to a psychologist. That referral was presumed medically necessary for treatment of the employee and the employer offered no evidence that the employee did not suffer from symptoms of depression due to his loss of function. Moreover, the employer offered no expert medical testimony to refute the pain management specialist’s opinion that the employee needed treatment for his depression. In conclusion, the evidence supported the trial court's order for a panel of specialists, but the order was modified to limit it to a panel of psychologists, as recommended by the pain management specialist. Montgomery v. Mitchell Industrial Tire Co., Inc., 2019 TN Wrk Comp App Bd LEXIS 32. Following a physical assault in the workplace, the employee initiated a claim for workers' compensation benefits for her alleged physical and mental injuries. The employer accepted the claim for the physical injuries but denied that the employee's alleged mental injury arose primarily out of the work incident. Following a trial, the court properly concluded the employee did not prove by a preponderance of the evidence that she developed a mental injury arising primarily out of and in the course and scope of her employment and denied benefits for the alleged mental injury. Neither the employee's testimony nor the medical proof established that the employee's mental symptoms following the work assault substantially differed from those she reported to her primary care physician eight months before the incident. Following the assault, the employee returned to work and for the next eight months she successfully endured the same general work stress that she experienced before her injury. Furthermore, the trial court had concluded the employee was terminated not because of her disability but rather a disagreement with her supervisor, which was not the reason the employee asserted in her resignation letter. Holdway v. Lakeside Behavioral Health Systems, 2019 TN Wrk Comp App Bd LEXIS 36. The claimant is an artisan whose expertise is fabricating and sculpting artificial rocks for various types of exhibits. In this case, he was working at the Nashville Zoo and alleged he suffered a work-related injury. He contended the company that hired him to come to Nashville to perform the work was his employer and was responsible for providing workers' compensation benefits as a result of his injury. The alleged employer denied that it was responsible for providing benefits, asserting the claimant was an independent contractor. Following an expedited hearing, the trial court properly determined the claimant was an independent contractor and denied the requested benefits. The claimant was a resident of Florida who agreed to come to Nashville for the purpose of completing a single project that was known to be temporary work. The very nature of the working arrangement was that of a contractor (the artistic director of the project) and an independent contractor (the claimant, an artist tasked with effectuating a portion of the artistic vision of the Zoo). Kent v. Delatorre Art Design, Inc., 2019 TN Wrk Comp App Bd LEXIS 48. An employee, a nursing assistant, was helping a patient in a chair when the patient began to fall. As she reached to catch the patient, the employee felt pain in her left shoulder and neck. Four days later, she was involved in a motor vehicle collision unrelated to her employment that resulted in pain in her leg, wrist, and elbow. The employer provided medical care but later took the position that the employee's medical conditions did not arise primarily from the work accident and that the motor vehicle accident constituted an intervening cause of the employee's conditions. Following a trial, the court properly found the employee suffered injuries arising primarily out of her employment and awarded temporary total disability benefits, permanent partial disability benefits, and future medical benefits. With respect to whether the employee's car accident was a subsequent intervening event that would break the chain of causation and relieve the employer of its obligation to provide benefits, there was insufficient proof to support a finding that either the car accident or the employee's work as a hairstylist advanced or aggravated her medical conditions. Although the medical records indicated the employee's work as a stylist may have increased her symptoms, there was no opinion in the record, expert or otherwise, that her injuries arose primarily out of either the motor vehicle accident or her work as a stylist. Rather, as the trial court concluded, the preponderance of the evidence supported the conclusion that the employee's left shoulder and neck injuries arose primarily out of and in the course and scope of her work with the employer. Clay v. Signature Healthcare, 2019 TN Wrk Comp App Bd LEXIS 58. An employee alleged she injured her low back and/or aggravated a pre-existing arthritic condition in her right hip as a result of a work-related accident. Following a course of authorized treatment with two physicians, the employee asserted she was entitled to additional medical treatment. In response to the employer's motion for summary judgment, which was supported by the opinions of three physicians, the employee submitted the sworn declaration of a physician's assistant. The trial court properly granted the employer's motion for summary judgment and dismissed the employee's claim. The employer presented sufficient evidence that the employee's medical conditions and current need for treatment did not arise primarily from the work accident. As a result, the burden shifted to the employee to come forward with sufficient evidence showing a genuine issue of material fact as to the cause of her medical conditions and need for additional treatment. However, the sworn declaration of a physician's assistant, without more, cannot create a genuine issue of material fact as to the issue of causation. A physician's assistant, like a nurse practitioner, is not qualified to offer an expert opinion on medical causation. Moreover, the physician assistant couched her opinions in terms such as "may be reasonably referable" and "may be related." Such opinions, even if admissible, do not meet the standards to satisfy causation. Thus, the employee did not come forward with sufficient evidence at the summary judgment stage to show a genuine issue of material fact as to the issue of medical causation. Adiole v. Logan Senior Care, LLC, 2019 TN Wrk Comp App Bd LEXIS 78. An employee was involved in a motor vehicle accident while riding as a passenger in a work vehicle. He asserted he sustained injuries to both arms and his right shoulder as a result of that accident. After several medical evaluations, the authorized physician concluded that the employee's medical conditions pre-existed the work accident and were not at least fifty-one percent causally related to that accident. Following an expedited hearing, the trial court properly denied the employee's interlocutory request for additional medical and temporary disability benefits. The Board agreed with the trial court that the employee did not rebut the presumption of correctness attributable to the authorized physician's causation opinion and did not come forward with sufficient proof at the expedited hearing to show he is likely to prevail at trial on the issue of medical causation. Dennis v. Memphis Light, Gas & Water, 2019 TN Wrk Comp App Bd LEXIS 80. An employee, a sales manager at an office supply store, alleged he suffered a right knee injury as a result of performing work activities over a two-day period. After timely reporting his injury, the employee sought medical care at a hospital emergency department and was referred to an orthopedic surgeon who subsequently diagnosed a tear in the employee's meniscus and recommended surgery. The employer denied the claim, contending the employee did not suffer a compensable accidental injury based upon the medical proof establishing that the employee suffered an acute injury rather than a gradual injury. In part, the trial court ordered the employer to provide medical benefits, including the recommended knee surgery. The employee identified specific physical activities he performed over the course of a narrow and identifiable period of time that resulted in his right knee injury. His co-worker corroborated his testimony as to the work the employee performed. The fact that the employee was unable to point to the specific moment in time that a tear occurred to his medial meniscus does not prevent his claim from being compensable. The employee successfully met his burden at the expedited hearing by identifying the time and place of his injury, a two-day period over which he performed specific physical tasks that his physician opined are consistent with the type of injury he sustained. Friend v. Staples Contract and Commercial, LLC, 2020 TN Wrk Comp App Bd LEXIS 12. An employee reported back pain after lifting totes at work and sought medical benefits from her employer. After the employee was seen by an onsite nurse and a physician at an urgent care facility, the employer declined to authorize a referral to an orthopedic specialist because the employee was unable to identify a specific date of injury, a specific incident, or a set of incidents allegedly causing her back condition. The employer also asserted the employee failed to provide proper notice of a work injury and failed to show her back condition arose primarily from a work accident. Following an expedited hearing, the trial court ordered the employer to provide the employee a panel of orthopedic specialists, and the employer has appealed. First, the employer asserted that the employee did not provide timely written notice of the injury and did not even provide timely verbal notice of an accident. However, the employee credibly testified that she reported ongoing back pain to an assistant manager, and received medical treatment from the employer's on-site clinic. Thus, the employer had actual notice of the employee's alleged injury. Moreover, it was undisputed the employer provided the employee a panel of physicians pursuant to the workers' compensation law, and she was treated by an authorized physician. The employer offered no proof that any alleged defective notice caused it prejudice. Second, the employee was likely to prevail at trial in proving a set of incidents sufficiently identifiable by time and place of occurrence, where the employee offered unrefuted testimony that her low back pain began while she was lifting heavy totes at work in September 2018, and she further testified, again without contradiction, that she reported her back pain to an assistant manager on multiple occasions and, ultimately, was seen by an on-site nurse and by a panel-selected physician at an urgent care facility. Ibarra v. Amazon Fulfillment Services, Inc., 2020 TN Wrk Comp App Bd LEXIS 13. An employee reported that his left knee gave way while he was climbing a ladder at work. The employee had suffered a work-related injury to his left knee several years before when his employer had workers' compensation coverage with a different insurer. The employee also had been diagnosed with pre-existing osteoarthritis in his left knee unrelated to his work injuries. One physician testified that the employee's current need for a total knee arthroplasty was caused primarily by his pre-existing osteoarthritis. Another physician opined that the most recent work accident caused an exacerbation of his pre-existing osteoarthritis. The trial court concluded the employee is likely to prevail at trial in proving the need for a total knee arthroplasty arose primarily from the most recent work accident, and it ordered the employer to authorize treatment, including any recommended surgery. The Board concluded that the trial court erred in concluding the employee's lay testimony and the opinions expressed by the employee’s expert outweighed the unequivocal testimony of an orthopedic surgeon with respect to the need for a total knee replacement surgery. The employee was entitled to reasonable and necessary medical treatment causally related to the work accident. However, the evidence presented at the expedited hearing did not support an order compelling the employer and its current insurer to authorize the total knee arthroplasty at this time. Barnes v. Jack Cooper Transport Co., 2020 TN Wrk Comp App Bd LEXIS 16. An employee sustained an injury to her right hand and right knee after tripping over a pallet in the course of her employment. The claim was accepted as compensable and the employer provided medical benefits, including authorization of a partial knee replacement.

Following surgery, the employee began experiencing back and hip pain, prompting a referral for a neurosurgical evaluation that resulted in a recommendation for lumbar surgery. The employer authorized decompression surgery, but declined to authorize a fusion. The employee filed a petition seeking, in part, to compel the employer to authorize both procedures. The trial court ordered the employer to authorize the recommended surgery. On appeal, the employer that the trial court erred in awarding benefits to the employee when she failed to prove her back and hip injuries were the result of a specific incident or set of incidents that were identifiable by time and place of occurrence. It was undisputed that the employee suffered a compensable injury to her knee after tripping over a pallet at work. The employee's theory of recovery relied on the assertion that her back and hip complaints were the direct and natural consequence of the compensable knee injury and were not caused by a specific incident or set of incidents at work. Thus, the employee's inability to describe a specific incident or set of incidents identifiable by time and place of occurrence that resulted in her back and hip complaints was not a bar to relief. Moreover, the employer offered no proof to rebut a physician's opinion that the employee's knee injury and subsequent surgery caused an alteration in her gait that resulted in an aggravation of her preexisting hip condition and her lumbar condition. Accordingly, the evidence supported the trial court's determination that the employee was likely to prevail at trial in establishing the compensability of her lumbar and hip conditions. Hudgins v. Global Personnel Solutions, Inc., 2020 TN Wrk Comp App Bd LEXIS 19. An employee, an assistant store manager, alleged a bag of dog food fell on her at work, resulting in injuries to her neck and shoulder. Following an expedited hearing, the trial court determined that the opinion of an authorized treating physician was sufficient to establish that the employee would likely prevail on the merits and ordered the employer to provide a panel of physiatrists for nonoperative treatment for her cervical strain as recommended by the authorized physician. The trial court additionally determined that the employee was entitled to 18 days of temporary disability benefits. The employer appealed. At an expedited hearing, an employee need not prove every element of a claim by a preponderance of the evidence to be entitled to temporary disability or medical benefits, but must instead present evidence sufficient for the trial court to conclude that the employee would likely prevail at a hearing on the merits. However, the employer did not assert that the evidence presented at the expedited hearing failed to support the trial court’s determination that the employee is likely to prevail at trial, but essentially insisted the applicable standard of proof at the expedited hearing is not a lesser evidentiary standard. The Board was unpersuaded by the employer’s argument and affirmed the trial court’s determinations. Gillum v. Dollar General Corporation, 2020 TN Wrk Comp App Bd LEXIS 25. An employee alleged injuries as a result of receiving an electrical shock in the course of her employment. After receiving treatment from an unauthorized dentist as well as from authorized medical care providers, the employee filed a petition alleging entitlement to additional benefits. She subsequently requested a hearing in which she sought to compel the employer to provide benefits for dental injuries she alleged she suffered as a result of the workplace incident. Following the hearing, the trial court denied benefits for the employee's alleged dental injuries but awarded other medical benefits. Thereafter, the employer filed a motion for summary judgment supported by statements of allegedly undisputed facts. In response, the employee submitted numerous documents, including a letter from a dentist stating that the dental work she needed "could very well be due to the electrical shock." The trial court granted the employer's motion for summary judgment in part and dismissed the employee's claims for injuries to her mouth, eyes, and hearing. The trial court denied the employer's motion as it related to the employee's claim of dental injuries. The employer has appealed. The trial court's grant of summary judgment dismissing the employee's alleged non-dental injuries was affirmed, but the trial court's denial of summary judgment as to the employee's alleged dental injuries was reversed. A dentist's opinion that the work that needed to be performed to save the employee's teeth "could very well be" the result of the electric shock was insufficient as a matter of law to support an award of benefits for the employee's alleged dental injuries. Armstrong v. Chattanooga Billiard Club, 2020 TN Wrk Comp App Bd LEXIS 40. NOTES TO DECISIONS 1. Evidence Sufficiency. 2. Causation. 3. Failure to Show Compensable Accident. 4. Independent Contractor's Employee. 1. Evidence Sufficiency. Claimant failed to produce sufficient evidence to show that his left-foot condition arose primarily out of and in the course and scope of his employment, where the claimant submitted no medical evidence showing that it was more likely than not that his employment contributed more than 50 percent to his injury. The treating physician's statement that the claimant's workplace accident was at least part of the cause of his foot problems did not establish by a preponderance of the evidence that the claimant's employment contributed more than 50 percent in causing the injury. Payne v. D & D Elec., — S.W.3d —, 2017 Tenn. LEXIS 215 (Tenn. Apr. 18, 2017), aff'd, — S.W.3d —, 2017 Tenn. LEXIS 213 (Tenn. Apr. 18, 2017). Treating physician's opinion that a claimant's injury was not work-related was entitled to a presumption of correctness, and the claimant did not present sufficient medical evidence to overcome the presumption. Thysavathdy v. Bridgestone Ams. Tire Operations, — S.W.3d —, 2018 Tenn. LEXIS 313 (Tenn. June 8, 2018). Evidence preponderated in favor of the trial court's holding that an employee did not suffer a new injury from incidents with other employers because the employee testified that, after each incident, her wrist pain eventually returned to her baseline level on its own; a doctor opined that he saw no significant change from the employee's condition before the incidents, and each incident resulted only in a temporary increase in pain. Paris v. McKee Foods Corp., — S.W.3d —, 2021 Tenn. LEXIS 53 (Tenn. Feb. 18, 2021). 2. Causation. Workers' Compensation Appeals Board properly reversed the trial court's order which found that the employee's injury was compensable because, in applying the correct standard to the employee's injury that occurred after July 1, 2014, the evidence preponderated against the trial court's finding that the employment of the employee contributed more than 50% in causing his patellar dislocation as the employee's doctor was unable to state with any reasonable degree of medical certainty that dragging heavy rolls of material at work contributed to the employee's injury in any way; and the doctor stated that the employee had patella alta, a condition that predisposed him to patellar dislocations. Willis v. All Staff, — S.W.3d —, 2017 Tenn. LEXIS 455 (Tenn. Aug. 3, 2017). It was proper to deny an employee's claim for workers' compensation because the evidence did not preponderate against the trial court's finding that the employee failed to sustain his burden of proof that his injury arose primarily out of his employment; a doctor did not testify within a reasonable degree of medical certainty, either directly or indirectly, that the employee's work activity more likely than not contributed more than fifty percent in causing the injury. Panzarella v. Amazon.Com, Inc., — S.W.3d —, 2018 Tenn. LEXIS 244 (Tenn. May 16, 2018), aff'd, Panzarella v. Amazon.com, Inc., — S.W.3d —, 2018 Tenn. LEXIS 247 (Tenn. May 16, 2018). Injury that is caused by an employer's failure to provide reasonable medical assistance arises out of and in the course of employment when an employee becomes helpless at work because of illness or other cause unrelated to her employment, the employee needs medical assistance to prevent further injury, the employer knows of the employee's helplessness, and the employer can provide reasonable medical assistance but does not do so. Chaney v. Team Techs., Inc., 568 S.W.3d 576, 2019 Tenn. LEXIS 20 (Tenn. Jan. 31, 2019). Trial court erred in holding that the independent intervening cause principle relieved a former employer of liability under the settlement agreement with the employee and the workers' compensation statutes because there was no finding of a new injury or an aggravation of the wrist injury the employee had while working for the former employer. Paris v. McKee Foods Corp., — S.W.3d —, 2021 Tenn. LEXIS 53 (Tenn. Feb. 18, 2021). If the employee's activity results in only an increase in pain but there is no new injury or aggravation of the original injury, the independent intervening cause principle is not applicable to relieve the original employer of liability. Paris v. McKee Foods Corp., — S.W.3d —, 2021 Tenn. LEXIS 53 (Tenn. Feb. 18, 2021). 3. Failure to Show Compensable Accident. Employee's October 2008 shoulder and neck injuries were not compensable because the first doctor testified that the January 2009 MRI of the employee's shoulder showed degenerative changes that had existed for quite some time, and that the cysts appearing in the MRI were evidence of a chronic condition and could not have formed since October 2008; and the second doctor testified that he consulted with a radiologist who interpreted both the employee's 2003 spinal images and his 2012 spinal images and, based on the comparison of those images, the second doctor opined that the employee had only slight progression of his spondylosis over that time and there was no anatomical change due to an acute injury that occurred between 2003 and 2012. T & B Trucking v. Pigue, — S.W.3d —, 2017 Tenn. LEXIS 788 (Tenn. Dec. 14, 2017), aff'd, — S.W.3d —, 2017 Tenn. LEXIS 789 (Tenn. Dec. 14, 2017). 4. Independent Contractor's Employee. Material evidence supported the jury's determination that a worker was the employee of a non-party independent contractor, rather than the property owner, where the contractor had been hired by the owner to construct a house and had the right to control the conduct of the work, the right to schedule working hours, the freedom to select and hire helpers, and the right of termination. Helton v. Lawson, — S.W.3d —, 2019 Tenn. App. LEXIS 613 (Tenn. Ct. App. Dec. 18, 2019).