Tennessee § 50-6-242 - Additional disability benefits — Award of permanent partial disability benefits for permanent medical impairment in certain cases — Specific documented findings required — Employees not eligible or authorized to work in the United States under federal immigration laws are ineligible.

§ 50-6-242. Additional disability benefits — Award of permanent partial disability benefits for permanent medical impairment in certain cases — Specific documented findings required — Employees not eligible or authorized to work in the United States under federal immigration laws are ineligible.

This subsection (a) shall apply to injuries that occur on or after July 1, 2014. For injuries that occur during the time period set out in subdivision (a)(1), in extraordinary cases where the employee is eligible for increased benefits under § 50-6-207(3)(B), the employee may receive disability benefits of sixty-six and two-thirds percent (66 2/3%) of the employee's pre-injury average weekly wage or salary for a period not to exceed the two hundred seventy-five (275) weeks inclusive of the benefits provided to the employee under § 50-6-207(3)(A). Benefits may be awarded pursuant to this subsection (a), in lieu of the increased benefits for which the employee is eligible under § 50-6-207(3)(B), if the presiding workers' compensation judge first determines based on clear and convincing evidence that limiting the employee's recovery to the benefits provided by § 50-6-207(3)(B) would be inequitable in light of the totality of the circumstances and the presiding workers' compensation judge makes specific, documented findings that as of the date of the award or settlement the three (3) following facts concerning the employee are true: The employee has been assigned an impairment rating of at least ten percent (10%) to the body as whole, that has been determined according to the AMA guides as defined by § 50-6-102, by the authorized treating physician; The authorized treating physician has certified on a form provided by the bureau that due to the permanent restrictions on activity the employee has suffered as a result of the injury the employee no longer has the ability to perform the employee's pre-injury occupation. The authorized treating physician's certification pursuant to this subdivision (a)(2)(B) shall have a presumption of correctness that may be overcome by the presentation of contrary clear and convincing evidence; and The employee is not earning an average weekly wage or salary that is greater than or equal to seventy percent (70%) of the employee's pre-injury average weekly wage or salary. For those injuries that occur on or after July 1, 2004 but prior to July 1, 2014, and notwithstanding any provision of this chapter to the contrary and in appropriate cases where the employee is eligible to receive the maximum permanent partial disability award under § 50-6-241(d)(1)(B) or (d)(2), the employee may receive disability benefits not to exceed the appropriate maximum number of weeks as set forth in § 50-6-207 for the type of injury sustained by the employee. In those cases, the court or workers' compensation specialist shall make specific documented findings, supported by clear and convincing evidence, that as of the date of the award or settlement, at least three (3) of the following facts concerning the employee are true: The employee lacks a high school diploma or general equivalency diploma or the employee cannot read or write on a grade eight (8) level; The employee is fifty-five (55) years of age or older; The employee has no reasonably transferable job skills from prior vocational background and training; and The employee has no reasonable employment opportunities available locally considering the employee's permanent medical condition. Subsections (a) and (b) shall not apply to injuries sustained on or after July 1, 2009, by an employee who is not eligible or authorized to work in the United States under federal immigration laws. Acts 1992, ch. 900, § 18; 2004, ch. 962, § 12; 2009, ch. 526, § 2; 2013, ch. 282, § 8; 2013, ch. 289, § 90; 2014, ch. 903, §§ 7, 13; 2015, ch. 341, § 15; 2016, ch. 816, § 9. 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 2013, ch. 289, § 103 provided that the act, which amended this section, 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, in the introductory paragraph of (b), substituted “§ 50-6-207(3)(B) ” for “§ 50-6-241(d)(1)(B) or (d)(2)” in the first sentence, and substituted “workers' compensation judge” for “court or workers' compensation specialist” in the second sentence. The 2013 amendment by ch. 289, effective July 1, 2014, rewrote (a) which read: “For injuries that occur on or after August 1, 1992, and prior to July 1, 2004, notwithstanding any provision of this chapter to the contrary, the trial judge may award employees permanent partial disability benefits, not to exceed four hundred (400) weeks, in appropriate cases where permanent medical impairment is found and the employee is eligible to receive the maximum disability award under § 50-6-241(a)(2) or (b). In those cases the court, on the date of maximum medical improvement, must make a specific documented finding, supported by clear and convincing evidence, of at least three (3) of the following four (4) items:“(1) The employee lacks a high school diploma or general equivalency diploma or the employee cannot read or write on a grade eight (8) level;“(2) The employee is fifty-five (55) years of age or older;“(3) The employee has no reasonably transferable job skills from prior vocational background and training; and“(4) The employee has no reasonable employment opportunities available locally considering the employee's permanent medical condition.” The 2014 amendment rewrote (a), as amended by Acts 2013, ch. 289, which read: “a) For those injuries that occur on or after July 1, 2014, in appropriate cases where the employee has not returned to work and is entitled to additional benefits under § 50-6-207(3)(B) , the employee may receive additional disability benefits not to exceed the maximum number of weeks as set forth in § 50-6-207(2)(B) . In such cases, the court or the workers' compensation judge shall make specific documented findings, supported by clear and convincing evidence, that as of the date of the award or settlement, at least three (3) of the following facts concerning the employee are true:“(1) The employee lacks a high school diploma or general equivalency diploma, or the employee cannot read or write on a grade eight (8) level;“(2) The employee is fifty-five (55) years of age or older;“(3) The employee has no reasonably transferable job skills from prior vocational background and training; and“(4) The employee has no reasonable employment opportunities available locally considering the employee's permanent medical condition.”; and in (b), in the first sentence, as amended by Acts 2013, ch. 289, added “but prior to July 1, 2014” following “July 1, 2004” and substituted “§ 50-6-241(d)(1)(B) or (d)(2)” for “§ 50-6-207(3)(B) ” and, in the second sentence, substituted “court or workers’ compensation specialist” for “workers’ compensation judge”. The 2015 amendment substituted “bureau” for “division” in the first sentence in (a)(2)(B). The 2016 amendment deleted “, but shall not apply to injuries that occur after June 30, 2016” at the end of (a)(1). 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. 341, § 19. May 4, 2015. Acts 2016, ch. 816, § 11. April 14, 2016. Workers' Compensation Appeals Board Decisions. Following an employee's work-related back injury, the parties entered into a settlement agreement that resolved the employee's claim for permanent partial disability benefits and allowed the employee to petition for additional disability benefits once his original compensation period expired. At the conclusion of the initial compensation period, the employee sought increased benefits, asserting that, although he had returned to work for another employer, the wages or salary he was receiving was less than the wages or salary he received from his employer on the date of his injury and was less than 70% of his pre-injury average weekly wage or salary. The employer filed a motion for summary judgment, asserting there were no disputed material facts concerning whether the employee's wages with his new employer were greater than the wages he was receiving at the time of his injury. The trial court denied the employer's motion, concluding a genuine issue of material fact precluded summary judgment. The denial of the motion was affirmed because there was both contradictory and conflicting testimony regarding whether the employee was paid a salary or was paid an hourly rate for his work with the new employer. Good v. Vickers Concrete Reinforcing, Inc., 2019 TN Wrk Comp App Bd LEXIS 26.