50-6-204 - Medical treatment, attendance and hospitalization Release of medical records Reports Disputes Reimbursement or payment of expenses Burial expenses Physical examinations. - Tennessee Statutes

50-6-204. Medical treatment, attendance and hospitalization Release of medical records Reports Disputes Reimbursement or payment of expenses Burial expenses Physical examinations.

(a)  (1)  (A)  The employer or the employer's agent shall furnish free of charge to the employee such medical care and treatment made reasonably necessary by accident as defined in this chapter, including medical and surgical treatment, medical and surgical supplies, hospitalization, nursing services, psychological services, dental services, crutches, artificial members, and prescription eyeglasses or eyewear.

          (B)  No medical provider shall charge more than ten dollars ($10.00) for the first twenty (20) pages or less and twenty-five cents (25¢) per page for each page after the first twenty (20) pages for any medical reports, medical records or documents pertaining to medical treatment or hospitalization of the employee that are furnished pursuant to this subsection (a).

     (2)  (A)  It is the intent of the general assembly that the administration of the workers' compensation system proceed in a timely manner and that the parties and the department have reasonable access to the employee's medical records and medical providers that are pertinent to and necessary for the swift resolution of the employee's workers' compensation claim. Notwithstanding any law to the contrary, there shall be no implied covenant of confidentiality, prohibition against ex parte communications or privacy of medical records in the custody of authorized treating physicians with respect to case managers, employers or insurance companies, or their attorneys, if the persons comply with subdivision (a)(2)(C).

          (B)  For the purposes of subdivision (a)(2)(C), “employer” means the employer, the employer's attorney, the employer's insurance carrier or third party administrator, a case manager as authorized by § 50-6-123 and any utilization review agent as authorized by § 50-6-124 during the employee's treatment for the claimed workers' compensation injury.

          (C)  To facilitate the timely resolution of workers' compensation claims and to facilitate the use of the benefit review process established by this chapter, there shall be reasonable access to an employee's medical information only by compliance with the following:

                (i)  An employee claiming workers' compensation benefits shall provide the employer or the division of workers' compensation with a signed, written medical authorization form for injuries occurring on or after July 1, 2009. The form shall be addressed to a specific medical provider authorized by the employer pursuant to this section, shall permit the release of information through communication, either orally or in writing, as authorized under this subdivision (a)(2)(C), and shall plainly state in capitalized lettering on the face of the document the following language:  

THIS MEDICAL AUTHORIZATION FORM ONLY PERMITS THE EMPLOYER OR THE DIVISION OF WORKERS' COMPENSATION TO OBTAIN MEDICAL INFORMATION THROUGH ORAL OR WRITTEN COMMUNICATION, INCLUDING, BUT NOT LIMITED TO, CHARTS, FILES, RECORDS, AND REPORTS IN THE POSSESSION OF A MEDICAL PROVIDER AUTHORIZED BY THE EMPLOYER PURSUANT TO T.C.A. § 50-6-204 AND A MEDICAL PROVIDER THAT IS REIMBURSED BY THE EMPLOYER FOR THE EMPLOYEE'S TREATMENT.  

                (ii)  An employee claiming workers' compensation benefits or any attorney representing the employee shall be entitled to obtain medical information, records or reports from, or communicate in writing or in person with, any medical provider that has treated or provided medical care to the employee; provided, that the employee executes and provides the medical provider with an appropriate written authorization;

                (iii)  Any medical provider authorized by the employer pursuant to this section that has treated or provided medical care to an employee claiming workers' compensation benefits shall not communicate, orally or in writing, with the employer or the department except in the manner permitted by this subdivision (a)(2)(C);

                (iv)  Any request by the employer for medical information, medical records or medical reports pertaining to the claimed workers' compensation injury shall be in writing and a copy of the written request shall be provided to the employee and any attorney representing the employee at the time the written request is sent to the provider;

                (v)  Any form of written communication by an employer to or with a medical provider as defined by this section, other than a request pursuant to subdivision (a)(2)(C)(iv), is prohibited unless the employee and any attorney representing the employee are included as recipients of the written communication, are provided copies of any material or information provided to the medical provider, and the employer provides any response to the communication from the medical provider to the employee or the employee's attorney within seven (7) calendar days of the employer's receipt of the response;

                (vi)  Oral communication, including, but not limited to, telephone or face-to-face conversations, by the employer, other than an attorney representing the employer, with a medical provider authorized by the employer pursuant to this section is permitted upon the condition that in the event the oral communication occurs, the employer representative provides the employee or any attorney representing the employee with a written summary of any opinions or statements of the medical provider regarding the employee's injury or illness, medical condition or care during the oral communication within seven (7) days of a request by the employee or any attorney representing the employee;

                (vii)  Any form of oral communication, including, but not limited to, telephone or face-to-face conversations, by an attorney representing the employer with a medical provider authorized by the employer pursuant to this section is prohibited unless:

                     (a)  The employee and any attorney representing the employee have received written notice of the intended communication at least seven (7) days in advance of the intended oral communication; and

                     (b)  In the event the oral communication occurs, the employer representative shall provide the employee and any attorney representing the employee with a written summary of all opinions and statements of the medical provider during the oral communication within seven (7) days of the communication;

                (viii)  In the event an employee or employer files a request for assistance with the department requesting assistance with a determination as to whether the claim is compensable or with the determination of an issue related to medical benefits or temporary disability benefits, any request by the department for medical information, medical records, medical reports or medical opinions may be oral or in writing; provided, however, that:

                     (a)  Any response by the medical provider to the department's request shall be provided in writing; and

                     (b)  In the event the department receives documents or written responses to any request for information permitted by this subdivision (a)(2)(C)(viii), the department shall notify the employee, employer and any attorney representing the employee or employer within fourteen (14) days of receipt of the document or written response that such persons may review or copy the documents or responses and, if copies of documents are requested, the requesting party shall pay the copying fee authorized by this subsection (a) before copies are provided; and

                (ix)  In the event the department becomes involved in the appeal of a utilization review issue, the department is authorized to communicate with the medical provider involved in the dispute either orally or in writing to permit the timely resolution of the issue and shall notify the employee, employer or any attorney representing the employee or employer that they may review or copy the documents or responses; and if copies of any written documents are requested, the requesting party shall pay the copying fee authorized by this subsection (a) before copies are provided.

          (D)  No relevant information developed in connection with authorized medical treatment or examination provided pursuant to this section for which compensation is sought by the employee shall be considered a privileged communication and no medical provider shall incur any liability as a result of providing medical information, medical records or medical reports as described in subdivision (a)(2)(C); provided, that the applicable provisions of subdivision (a)(2)(C) are followed by the medical provider.

     (3)  Whenever it appears that the amount of medical benefits to which the employee may be entitled under this section will exceed the amount of five thousand dollars ($5,000), the insurer shall file written notice with the division of workers' compensation, which shall, upon receipt of the notice, notify the employer that the claim for medical benefits for the employee will exceed five thousand dollars ($5,000).

     (4)  (A)  The injured employee shall accept the medical benefits afforded under this section; provided, that, except as provided in subdivision (a)(4)(B) or (a)(4)(C), the employer shall designate a group of three (3) or more reputable physicians or surgeons not associated together in practice, if available in that community, from which the injured employee shall have the privilege of selecting the operating surgeon and the attending physician; and provided, further, that the liability of the employer for the services rendered the employee shall be limited to the charges that are established in the applicable medical fee schedule adopted pursuant to this section.

          (B)  If the injury is a back injury, then the group of three (3) or more physicians or surgeons required to be designated pursuant to subdivision (a)(4)(A) shall be expanded to four (4), one (1) of whom must be a doctor of chiropractic; provided, that no more than twelve (12) visits to the doctor of chiropractic shall be approved per back injury, except upon the approval of the employer. The provisions of this subdivision (a)(4)(B) shall not apply to state or local government employees and shall not apply to workers' compensation self-insurer pools established pursuant to § 50-6-405(c)(1).

          (C)  If the injury or illness requires the treatment of a physician or surgeon who practices orthopedic or neuroscience medicine, then the employer may appoint a panel of physicians or surgeons practicing orthopedic or neuroscience medicine required to be designated pursuant to subdivision (a)(4)(A) consisting of five (5) physicians, with no more than four (4) physicians affiliated in practice.

          (D)  In circumstances where an employee is offered a treating panel as described in subdivision (a)(4)(C), the injured employee shall be entitled to have a second opinion on the issue of surgery, impairment, and a diagnosis from that same panel of physicians selected by the employer.

          (E)  The employer shall provide the applicable panel of physicians to the employee in writing on a form prescribed by the division, and the employee shall document in writing the physician the employee has selected and the employee shall sign and date the prescribed form. The employer shall provide a copy of the completed form to the employee and shall maintain a copy of the completed form in the records of the employer and shall produce a copy of the completed form upon request by the division.

     (5)  All cases of dispute as to the value of the services shall be determined by the tribunal having jurisdiction of the claim of the injured employee for compensation. The tribunal may also deny payment of physicians' fees and hospital charges for failure to submit the reports as required in this section.

     (6)  (A)  When an injured worker is required by the worker's employer to travel to an authorized medical provider or facility located outside a radius of fifteen (15) miles from the insured worker's residence or workplace, then, upon request, the employee shall be reimbursed for reasonable travel expenses. The injured employee's travel reimbursement shall be calculated based on a per mile reimbursement rate, as defined in subdivision (a)(6)(B), times the total round trip mileage as measured from the employee's residence or workplace to the location of the medical provider's facility. The definition of community as contemplated by this subdivision (a)(6)(A) shall apply only for the purposes of this section.

          (B)  The per mile reimbursement rate for the injured employee shall be no less than the mileage allowance authorized for state employees who have been authorized to use personally owned vehicles in the performance of their duties. This minimum per mile reimbursement rate shall be based on the last published comprehensive travel regulations promulgated by the department of finance and administration.

(b)  (1)  Where the nature of the injury or occupational disease, as defined in § 50-6-102, is such that it does not disable the employee but reasonably requires medical, surgical, psychological or dental treatment or care, medicine, surgery, dental and psychological treatment, medicine, medical and surgical supplies, crutches, artificial members, and other apparatus shall be furnished by the employer.

     (2)  In addition to any attorney fees provided for pursuant to § 50-6-226, a court may award attorney fees and reasonable costs to include reasonable and necessary court reporter expenses and expert witness fees for depositions and trials incurred when the employer fails to furnish appropriate medical, surgical and dental treatment or care, medicine, medical and surgical supplies, crutches, artificial members and other apparatus to an employee provided for pursuant to a settlement or judgment under this chapter.

(c)  In case death results from the injury or occupational disease, as defined in § 50-6-102, the employer shall, in addition to the medical services, etc., referred to in subsections (a) and (b), pay the burial expenses of the deceased employee, not exceeding seven thousand five hundred dollars ($7,500). If the deceased employee leaves no dependents entitled to compensation under this chapter, the employer shall pay to the employee's estate the additional benefits provided in § 50-6-209(b)(2) and (3), and shall also be liable for the medical and hospital services and burial expenses provided for in this section.

(d)  (1)  The injured employee must submit to examination by the employer's physician at all reasonable times if requested to do so by the employer, but the employee shall have the right to have the employee's own physician present at the examination, in which case the employee shall be liable to the employee's physician for that physician's services.

     (2)  Any medical report submitted to the employer based upon the examination, or a true copy of the report, shall be furnished by the employer to the employee upon request; provided, that the employer may, in the employer's discretion, furnish the report to the attorney for the employee or to a member of the employee's family.

     (3)  (A)  To provide uniformity and fairness for all parties in determining the degree of anatomical impairment sustained by the employee, a physician, chiropractor or medical practitioner who is permitted to give expert testimony in a Tennessee court of law and who has provided medical treatment to an employee or who has examined or evaluated an employee seeking workers' compensation benefits shall utilize the applicable edition of the AMA Guides as established in § 50-6-102 or, in cases not covered by the AMA Guides, an impairment rating by any appropriate method used and accepted by the medical community.

          (B)  No anatomical impairment or impairment rating, whether contained in a medical record, medical report, including a medical report pursuant to § 50-6-235(c), deposition or oral expert opinion testimony shall be accepted during a benefit review conference or be admissible into evidence at the trial of a workers' compensation matter unless the impairment is based on the applicable edition of the AMA Guides or, in cases not covered by the AMA Guides, an impairment rating by any appropriate method used and accepted by the medical community.

          (C)  In the event of a release of a new edition of the American Medical Association Guides to the Evaluation of Permanent Impairment, American Medical Association, other than the edition designated in § 50-6-102(2), the commissioner shall, within six (6) months of the release of the new edition, conduct an evaluation of the new edition and report the commissioner's findings and recommendations to the general assembly. The AMA guides, as defined in § 50-6-102, shall remain in effect until a new edition is designated by the general assembly.

     (4)  The employer shall pay for the services of the physician making the examination at the instance of the employer.

     (5)  When a dispute as to the degree of medical impairment exists, either party may request an independent medical examiner from the commissioner's registry. If the parties are unable to mutually agree on the selection of an independent medical examiner from the commissioner's registry, it shall be the responsibility of the employer to provide a written request to the commissioner for assignment of an independent medical examiner with a copy of the notice provided to the other party. Upon receipt of the written request, the commissioner shall provide the names of three (3) independent medical examiners chosen at random from the registry. No physician may serve as an independent medical examiner in a case and serve on any panel of providers selected under this section for the employer involved in such case. The commissioner shall immediately notify the parties by facsimile or e-mail when the list of independent medical examiners has been assigned to a matter, but in any event the notification shall be made within five (5) business days of the date of the request. The employer may strike one (1) name from the list, with the rejection made and communicated to the other party by facsimile or e-mail no later than the third business day after the date on which notification of the list is provided. The employee shall select a physician to perform the independent medical examination from the remaining physicians on the list. All costs and fees for an independent medical examination and report made pursuant to this subdivision (d)(5) shall be paid by the employer. The written opinion as to the permanent impairment rating given by the independent medical examiner pursuant to this subdivision (d)(5) shall be presumed to be the accurate impairment rating; provided, however, that this presumption may be rebutted by clear and convincing evidence to the contrary.

     (6)  The commissioner shall establish by rule, in accordance with the provisions of the Uniform Administrative Procedures Act, compiled title 4, chapter 5, an independent medical examiners registry. The commissioner shall establish qualifications for the independent medical examiners, including continuing education and peer review requirements, with the advice of the Tennessee Medical Association and the advisory council on workers' compensation, established by § 50-6-121. The rules established shall include, but not be limited to, qualifications and procedures for submission of an application for inclusion on the registry, procedures for the review and maintenance of the registry, and procedures for assignment that ensures that the composition of the panels is random.

     (7)  Whenever the nature of the injury is such that specialized medical attention is required or indicated and the specialized medical attention is not available in the community in which the injured employee resides, the injured employee can be required to go, at the request of and at the expense of the employer, to the nearest location at which the specialized medical attention is available.

     (8)  If the injured employee refuses to comply with any reasonable request for examination or to accept the medical or specialized medical services that the employer is required to furnish under this chapter, the injured employee's right to compensation shall be suspended and no compensation shall be due and payable while the injured employee continues to refuse.

     (9)  For accidents or injuries occurring on or after July 1, 2005, in case of a dispute as to the injury, other than disputes as to the degree of medical impairment, the court may, at the instance of either party or on its own motion, appoint a neutral physician of good standing and ability to make an examination of the injured person and report the physician's findings to the court, the expense of which examination shall be borne equally by the parties.

(e)  In all death claims where the cause of death is obscure or is disputed, any interested party may require an autopsy, the cost of which is to be borne by the party demanding the autopsy.

(f)  Any physician whose services are furnished or paid for by the employer and who treats or makes or is present at any examination of an injured employee may be required to testify as to any knowledge acquired by the physician in the course of the treatment or examination as the treatment or examination relates to the injury or disability arising therefrom.

(g)  (1)  If an emergency, or on account of the employer's failure or refusal to provide the medical care and services required by this law, the injured employee or the injured employee's dependents may provide the medical care and services, and the cost of the medical care and services, not exceeding three hundred dollars ($300), shall be borne by the employer; provided, that the pecuniary liability of the employer shall be limited to the charges for the service that prevail in the community where the services are rendered.

     (2)  All cases of dispute as to the value of the services shall be determined by the tribunal having jurisdiction of the matter of compensation to the employee.

(h)  All psychological or psychiatric services available under subdivisions (a)(1) and (b)(1) shall be rendered only by psychologists or psychiatrists and shall be limited to those ordered upon the referral of physicians authorized under subdivision (a)(4).

(i)  (1)  The commissioner, in consultation with the medical care and cost containment committee and the advisory council on workers' compensation, is authorized to establish by rule, in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, a comprehensive medical fee schedule and a related system that includes, but is not limited to, procedures for review of charges, enforcement procedures and appeal hearings to implement the fee schedule. In developing the rules, the commissioner shall strive to assure the delivery of quality medical care in workers' compensation cases and access by injured workers to primary and specialist care while controlling prices and system costs. The medical care fee schedule shall be comprehensive in scope and shall address fees of physicians and surgeons, hospitals, prescription drugs, and ancillary services provided by other health care facilities and providers. The commissioner may consider any and all reimbursement systems and methodologies in developing the fee schedule, except that, in no event shall the fee schedule set forth differing rates for reimbursement or conversion factors for reimbursement of physical or occupational therapy services based or dependent on whether the services are performed in independently-owned facilities or physician-affiliated facilities, and shall not otherwise consider the physician ownership in the facility providing services. However, differing reimbursement rates may be implemented by the commissioner upon the department's presentation of state data demonstrating there is a need for differing reimbursement rates for physical/occupational therapy services and upon the department's holding a public hearing on the issue.

     (2)  The commissioner is authorized to retain experts to assist in the development of the fee schedule and related system in accordance with the contracting rules of the department of finance and administration.

     (3)  The commissioner, in consultation with the medical care and cost containment committee and the advisory council on workers' compensation, shall review the fee schedules adopted pursuant to this section on an annual basis and when appropriate the commissioner shall revise the fee schedules as necessary. It is the intent of the general assembly that this annual review consider, among other factors, the medical consumer price index.

     (4)  (A)  The comprehensive medical fee schedule adopted pursuant to this subsection (i) is not intended to prohibit an employer, trust or pool, or insurer from negotiating lower fees in its own medical fee agreements.

          (B)  For purposes of this subsection (i), unless the context otherwise requires, a “contracting agent” means any person that is in direct privity of contract with a medical provider to reimburse the medical provider for medical services provided to an injured worker pursuant to this chapter at rates other than those provided under the workers' compensation medical fee schedule. Nothing contained within this subsection (i) shall be construed to permit the creation of preferred provider organization networks that permit payments above the medical fee schedule adopted by the department.

          (C)  Beginning January 1, 2008, every contracting agent that sells, leases, assigns, transfers, or conveys its list of contracted health care providers and their contracted reimbursement rates shall, upon entering or renewing a provider contract, do all of the following:

                (i)  Disclose to the provider whether the list of contracted providers may be sold, leased, transferred, or conveyed to other payors or agents, including workers' compensation insurers or self insureds. The disclosure of the ability to sell, lease, transfer or convey the list or network of providers shall be in a section of a contract titled “assignment” or “assignability” or similar title;

                (ii)  Disclose whether payors to which the list of contracted providers may be sold, leased, transferred, or conveyed may be permitted to pay a provider's contracted rate if less than the workers' compensation fee schedule. The disclosure of the ability to pay a provider's contracted rate, if less than the workers' compensation fee schedule, shall be in a section of a contract titled “assignment” or “assignability” or similar title;

                (iii)  Allow providers, upon the initial signing or renewal of a provider contract, to decline to participate in networks solely to serve workers' compensation payors that are sold, leased, transferred, or conveyed to workers' compensation payors; and,

                (iv)  Maintain a web page that contains a complete listing of customers to whom the network is sold, leased, transferred or conveyed that is accessible to all contracted providers and updated at least twice a year, as well as maintain a toll-free telephone number accessible to all contracted providers whereby providers may access workers' compensation payor summary information and a list of lessees of the network.

          (D)  Beginning January 1, 2008:

                (i)  The workers' compensation payor's explanation of benefits or explanation of review shall identify the name of the network that has a written agreement signed by the provider whereby the workers' compensation payor is entitled, directly or indirectly, to pay a preferred rate for the services rendered; and

                (ii)  A workers' compensation payor shall demonstrate that it is entitled to pay a contracted rate within thirty (30) business days of receipt of a written request from a provider who has received a claim payment from the workers' compensation payor. The provider shall include in the request a statement explaining why the payment is not at the correct contracted rate for the services provided. The failure of the provider to include a statement shall relieve the workers' compensation payor from the responsibility of demonstrating that it was entitled to pay the disputed contracted rate. A workers' compensation payor shall be deemed to have demonstrated that it is entitled to pay a contracted rate if it identifies the contracting agent who has contracted with the medical provider to pay the reimbursement at the contracted rate.

[Acts 1919, ch. 123, § 25; Shan. Supp., § 3608a174; Code 1932, § 6875; Acts 1941, ch. 90, § 3; 1943, ch. 117, § 1; 1949, ch. 227, § 2; C. Supp. 1950, § 6875; Acts 1953, ch. 111, § 1; 1957, ch. 234, § 1; 1959, ch. 62, § 1; 1959, ch. 172, § 1; 1963, ch. 362, § 3; 1967, ch. 313, § 3; 1971, ch. 134, § 3; 1973, ch. 379, § 4; 1977, ch. 417, § 1; 1978, ch. 521, § 1; impl. am. Acts 1980, ch. 534, § 1; Acts 1980, ch. 650, § 1; T.C.A. (orig. ed.), § 50-1004; Acts 1983, ch. 194, § 1; 1983, ch. 215, § 1; 1983, ch. 276, § 1; 1984, ch. 782, § 1; 1985, ch. 393, § 3; 1986, ch. 792, § 1; 1986, ch. 809, § 1; 1988, ch. 525, § 3; 1989, ch. 210, § 1; 1989, ch. 446, § 1; 1991, ch. 255, § 1; 1996, ch. 790, § 1; 1997, ch. 198, § 1; 1997, ch. 259, § 1; 1997, ch. 533, § 2; 1998, ch. 1024, §§ 21, 22; 1999, ch. 225, § 1; 1999, ch. 294, §§ 2-5; 1999, ch. 520, § 41; 2000, ch. 990, §§ 1, 3; 2001, ch. 192, §§ 9, 10; 2001, ch. 246, § 1; 2003, ch. 359, § 2; 2004, ch. 433, § 1; 2004, ch. 962, §§ 1, 2, 5, 13, 24, 46; 2005, ch. 7, § 1; 2005, ch. 107, §§ 1, 2; 2005, ch. 188, § 1; 2006, ch. 902, § 1; 2007, ch. 300, § 1; 2007, ch. 522, § 1; 2007, ch. 543, § 1; 2008, ch. 835, § 1; 2008, ch. 1025, § 2; 2009, ch. 486, § 1.]