50-6-207 - Schedule of compensation. - Tennessee Statutes

50-6-207. Schedule of compensation.

The following is the schedule of compensation to be allowed employees under this chapter:

     (1)  Temporary Total Disability. 

          (A)  For injury producing temporary total disability, sixty-six and two-thirds percent (66 2/3%) of the average weekly wages as defined in this chapter, subject to the maximum weekly benefit and minimum weekly benefit; provided, that if the employee's average weekly wages are equal to or greater than the minimum weekly benefit, the employee shall receive not less than the minimum weekly benefit; and provided, further, that if the employee's average weekly wages are less than the minimum weekly benefit, the employee shall receive the full amount of the employee's average weekly wages, but in no event shall the compensation paid be less than the minimum weekly benefit. Where a fractional week of temporary total disability is involved, the compensation for each day shall be one seventh (1/7) of the amount due for a full week;

          (B)  (i)  An employer may choose to continue to compensate an injured employee at the employee's regular wages or salary during the employee's period of temporary total and temporary partial disability. The payments shall not result in an employee's receiving less than the employee would otherwise receive for temporary disability benefits under this chapter; however, a court or the department has no authority to require an employer to pay any temporary disability benefits required by subdivision (1)(A), in addition to the employee's regular wages or salary;

                (ii)  When an employee receives payments under subdivision (1)(B)(i) and the employee's claim for compensation under this chapter is determined by a court or settlement to be compensable, the employer shall be given credit for the payments. The credit shall be no more than the employee would have been otherwise paid under subdivision (1)(A), and any amount paid beyond the amount that would have otherwise been paid under subdivision (1)(A) shall not be credited against any award for permanent disability;

          (C)  Any person who has drawn unemployment compensation benefits and who subsequently receives compensation for temporary disability benefits under a workers' compensation law with respect to the same period shall be required to repay the unemployment compensation benefits; provided, that the amount to be repaid does not exceed the amount of temporary disability benefits;

          (D)  An employee claiming a mental injury as defined by § 50-6-102 occurring on or after July 1, 2009, shall be conclusively presumed to be at maximum medical improvement upon the earliest occurrence of the following:

                (i)  At the time the treating psychiatrist concludes the employee has reached maximum medical improvement;

                (ii)  One hundred four (104) weeks after the employee has reached maximum medical improvement as a result of the physical injury or illness that is the proximate cause of the mental injury; or

                (iii)  One hundred four (104) weeks after the date of injury in the case of mental injuries where there is no underlying physical injury;

     (2)  Temporary Partial Disability.  In all cases of temporary partial disability, the compensation shall be sixty-six and two-thirds percent (662/3%) of the difference between the average weekly wage of the worker at the time of the injury and the wage the worker is able to earn in the worker's partially disabled condition. This compensation shall be paid during the period of the disability, not, however, beyond four hundred (400) weeks, payment to be made at the intervals when the wage was payable, as nearly as may be, and subject to the same maximum, as stated in subdivision (1). In no event shall the compensation be less than the minimum weekly benefit;

     (3)  Permanent Partial Disability. 

          (A)  In case of disability partial in character but adjudged to be permanent, there shall be paid to the injured employee, in addition to the benefits provided by § 50-6-204, the following:

                (i)  Sixty-six and two-thirds percent (662/3%) of the injured employee's average weekly wages for the period of time during which the injured employee suffers temporary total disability on account of the injury, the benefit being subject to the same limitation as to minimum and maximum as provided in subdivision (1); and

                (ii)  In addition, the injured employee shall receive sixty-six and two-thirds percent (662/3%) of the injured employee's average weekly wages in accordance with the schedule set out in this subdivision (3); provided, that the compensation paid the injured employee for the period of temporary total disability and temporary partial disability shall not be deducted from the compensation to be paid under the schedule:

                     (a)  For the loss of a thumb, sixty-six and two-thirds percent (662/3%) of the average weekly wages during sixty (60) weeks;

                     (b)  For the loss of a first finger, commonly called an index finger, sixty-six and two-thirds percent (662/3%) of the average weekly wages during thirty-five (35) weeks;

                     (c)  For the loss of a second finger, sixty-six and two-thirds percent (662/3%) of the average weekly wages during thirty (30) weeks;

                     (d)  For the loss of a third finger, sixty-six and two-thirds percent (662/3%) of the average weekly wages during twenty (20) weeks;

                     (e)  For the loss of a fourth finger, commonly called a little finger, sixty-six and two-thirds percent (662/3%) of the average weekly wages during fifteen (15) weeks;

                     (f)  For the loss of the first phalange of the thumb, or of any finger, which shall be considered equal to the loss of one half (½) of such thumb or finger, compensation shall be paid at the prescribed rate during one half (½) of the time specified for the thumb or finger;

                     (g)  The loss of more than one (1) phalange shall be considered as the loss of the entire finger or thumb; provided, that in no case shall the amount received for more than one (1) finger exceed the amount provided in this schedule for the loss of a hand;

                     (h)  For the loss of the great toe, sixty-six and two-thirds percent (662/3%) of the average weekly wages during thirty (30) weeks;

                     (i)  For the loss of one (1) of the toes other than the great toe, sixty-six and two-thirds percent (662/3%) of the average weekly wages during ten (10) weeks;

                     (j)  The loss of a first phalange of any toe shall be considered to be equal to the loss of one half (½) of such toe, and compensation shall be paid at the prescribed rate during one half (½) the time specified for the toe;

                     (k)  The loss of more than one phalange shall be considered as the loss of the entire toe;

                     (l)  For the loss of a hand, sixty-six and two-thirds percent (662/3%) of the average weekly wages during one hundred fifty (150) weeks;

                     (m)  For the loss of an arm, sixty-six and two-thirds percent (662/3%) of the average weekly wages during two hundred (200) weeks;

                     (n)  For the loss of a foot, sixty-six and two-thirds percent (662/3%) of the average weekly wages for one hundred twenty-five (125) weeks;

                     (o)  For the loss of a leg, sixty-six and two-thirds percent (662/3%) of the average weekly wages during two hundred (200) weeks;

                     (p)  Compensation for an arm or leg, if amputated above the wrist joint or above the ankle joint shall be for the loss of the arm or leg;

                     (q)  For the loss of an eye, sixty-six and two-thirds percent (662/3%) of the average weekly wages during one hundred (100) weeks;

                     (r)  For the complete permanent loss of hearing in both ears, sixty-six and two-thirds percent (662/3%) of the average weekly wages during one hundred fifty (150) weeks;

                     (s)  For the loss of an eye and a leg, sixty-six and two-thirds percent (662/3%) of the average weekly wages during three hundred fifty (350) weeks;

                     (t)  For the loss of an eye and an arm, sixty-six and two-thirds percent (662/3%) of the average weekly wages during three hundred fifty (350) weeks;

                     (u)  For the loss of an eye and a hand, sixty-six and two-thirds percent (662/3%) of the average weekly wages during three hundred twenty-five (325) weeks;

                     (v)  For the loss of an eye and a foot, sixty-six and two-thirds percent (662/3%) of the average weekly wages during three hundred (300) weeks;

                     (w)  For the loss of two (2) arms, other than at the shoulder, sixty-six and two-thirds percent (662/3%) of the average weekly wages during four hundred (400) weeks;

                     (x)  For the loss of two (2) hands, sixty-six and two-thirds percent (662/3%) of the average weekly wages during four hundred (400) weeks;

                     (y)  For the loss of two (2) legs, sixty-six and two-thirds percent (662/3%) of the average weekly wages during four hundred (400) weeks;

                     (z)  For the loss of two (2) feet, sixty-six and two-thirds percent (662/3%) of the average weekly wages during four hundred (400) weeks;

                     (aa)  For the loss of one (1) arm and the other hand, sixty-six and two-thirds percent (662/3%) of the average weekly wages during four hundred (400) weeks;

                     (bb)  For the loss of one (1) hand and (1) foot, sixty-six and two-thirds percent (662/3%) of the average weekly wages during four hundred (400) weeks;

                     (cc)  For the loss of one (1) leg and one (1) hand, sixty-six and two-thirds percent (662/3%) of the average weekly wages during four hundred (400) weeks;

                     (dd)  For the loss of one (1) arm and one (1) foot, sixty-six and two-thirds percent (662/3%) of the average weekly wages during four hundred (400) weeks; and

                     (ee)  For the loss of one (1) arm and one (1) leg, sixty-six and two-thirds percent (662/3%) of the average weekly wages during four hundred (400) weeks;

          (B)  The total amount of compensation payable in this subdivision (3) shall not exceed the maximum total benefit;

          (C)  When an employee sustains concurrent injuries resulting in concurrent disabilities, such employee shall receive compensation only for the injury that produced the longest period of disability, but this section shall not affect liability for the concurrent loss of more than one (1) member, for which members' compensations are provided in the specific schedule and in subdivision (4)(B). In all cases the permanent and total loss of the use of a member shall be considered as equivalent to the loss of that member, but in such cases the compensation in and by the schedule provided shall be in lieu of all other compensation;

          (D)  In cases of permanent partial disability due to injury to a member resulting in less than total loss of use of the member not otherwise compensated in this schedule, compensation shall be paid at the prescribed rate during that part of the time specified in the schedule for the total loss or total loss of use of the respective member that the extent of injury to the member bears to its total loss. If an injured employee refuses employment suitable to the injured employee's capacity, offered to or procured for the injured employee, the injured employee shall not be entitled to any compensation at any time during the continuance of the refusal, unless at any time in the opinion of a court having jurisdiction over the underlying workers' compensation case the refusal is justifiable. All compensation provided in this subdivision (3) for loss to members, or loss of use of members, is subject to the same limitation as to maximum and minimum as are stated in subdivision (1);

          (E)  For serious disfigurement to the head, face or hands, not resulting from the loss of a member or other injury specifically compensated, so altering the personal appearance of the injured employee as to materially affect the injured employee's employability in the employment in which the injured employee was injured or other employment for which the injured employee is then qualified, sixty-six and two-thirds percent (662/3%) of the average weekly wages for the period the court determines, not exceeding two hundred (200) weeks. This benefit shall not be awarded in any case where the injured employee is compensated under any other provision of this chapter;

          (F)  All other cases of permanent partial disability enumerated in this subdivision (3) shall be apportioned to the body as a whole, which shall have a value of four hundred (400) weeks, and there shall be paid compensation to the injured employee for the proportionate loss of use of the body as a whole resulting from the injury. Compensation for such permanent partial disability shall be subject to the same limitations as to maximum and minimum as provided in subdivision (1). If an employee has previously sustained an injury compensable under this section for which a court of competent jurisdiction has awarded benefits based on percentage of disability to the body as a whole and suffers a subsequent injury not enumerated in this subdivision (3), the injured employee shall be paid compensation for the period of temporary total disability and only for the degree of permanent disability that results from the subsequent injury. The benefits provided by this subdivision (3)(F) shall not be awarded in any case where benefits for a specific loss are otherwise provided in this chapter;

     (4)  Permanent Total Disability. 

          (A)  (i)  For permanent total disability as defined in subdivision (4)(B), sixty-six and two-thirds percent (662/3%) of the wages received at the time of the injury, subject to the maximum weekly benefit and minimum weekly benefit; provided, that if the employee's average weekly wages are equal to or greater than the minimum weekly benefit, the employee shall receive not less than the minimum weekly benefit; provided, further, that if the employee's average weekly wages are less than the minimum weekly benefit, the employee shall receive the full amount of the employee's average weekly wages, but in no event shall the compensation paid be less than the minimum weekly benefit. This compensation shall be paid during the period of the permanent total disability until the employee is, by age, eligible for full benefits in the Old Age Insurance Benefit Program under the Social Security Act, compiled in 42 U.S.C. § 401 et seq.; provided, that with respect to disabilities resulting from injuries that occur after sixty (60) years of age, regardless of the age of the employee, permanent total disability benefits are payable for a period of two hundred sixty (260) weeks. The compensation payments shall be reduced by the amount of any old age insurance benefit payments attributable to employer contributions that the employee may receive under title 42, chapter 7, title II of the Social Security Act, 42 U.S.C. § 401 et seq. Notwithstanding any statute or court decision to the contrary, the statutory social security offset provided by this section shall have no applicability to death benefits awarded to a deceased worker's dependents pursuant to this chapter;

                (ii)  Notwithstanding any other law to the contrary and notwithstanding any agreement of the parties to the contrary, permanent total disability payments shall not be commuted to a lump sum, except in accordance with the following:

                     (a)  Benefits may be commuted to a lump sum to pay only the employee's attorney's fees and litigation expenses and to pay pre-injury obligations in arrears;

                     (b)  The commuted portion of an award shall not exceed the value of one hundred (100) weeks of the employee's benefits;

                     (c)  After the total amount of the commuted lump sum is determined, the amount of the weekly disability benefit shall be recalculated to distribute the total remaining permanent total benefits in equal weekly installments beginning with the date of entry of the order and terminating on the date the employee's disability benefits terminate pursuant to subdivision (4)(A)(i);

                (iii)  Attorneys' fees in contested cases of permanent total disability shall be calculated upon the first four hundred (400) weeks of disability only;

                (iv)  In case an employee who is permanently and totally disabled becomes an inmate of a public institution, and provided further, that if no person or persons are wholly dependent upon the employee, then the amounts falling due during the lifetime of the employee shall be paid to the employee or to the employee's guardian, if non compos mentis, to be spent for the ward's benefit; such payments to cease upon the death of the employee;

          (B)  When an injury not otherwise specifically provided for in this chapter totally incapacitates the employee from working at an occupation that brings the employee an income, the employee shall be considered totally disabled and for such disability compensation shall be paid as provided in subdivision (4)(A); provided, that the total amount of compensation payable under this subdivision (4)(B) shall not exceed the maximum total benefit, exclusive of medical and hospital benefits;

          (C)  (i)  If an employee is determined, by trial or settlement, to be permanently totally disabled, the employer, insurer or the department, in the event the second injury fund is involved, may have the employee examined, at the expense of the requesting entity, from time to time, subject to the conditions outlined in this section, and may seek reconsideration of the issue of permanent total disability as provided in this subdivision (4)(C);

                (ii)  The request for the examination of the employee may not be made until twenty-four (24) months have elapsed following the entry of a final order in which it is determined that the employee is permanently totally disabled. Any request for an examination is subject to considerations of reasonableness in regard to notice prior to examination, place of examination and length of examination;

                (iii)  A request for an examination may not be made more often than once every twenty-four (24) months. The procedure for this examination shall be as follows:

                     (a)  The requesting entity shall first make informal contact with the employee, either by letter or by telephone, to attempt to schedule an appointment with a physician for examination at a mutually agreeable time and place. It is the intent of the general assembly that the requesting entity make a good faith effort to reach a mutual agreement for examination, recognizing the inherently intrusive nature of a request for examination;

                     (b)  If, after a reasonable period of time, not to exceed thirty (30) days, mutual agreement is not reached, the requesting entity shall send the employee written notice of demand for examination by certified mail, return receipt requested, on a form provided by the department. The form shall clearly inform the employee of the following: the date, time and place of the examination; the name of the examining physician; the employee's obligations; any pertinent time limitations; the employee's rights; and any consequences of the employee's failure to submit to the examination. The examination shall be scheduled to take place within thirty (30) days of the date on the notice;

                     (c)  After receipt of the notice of demand for examination, the employee shall either submit to the examination at the time and place identified in the notice form, or, within thirty (30) days from the date of the notice, the employee shall schedule an appointment for a different date and time conducted by the same physician, and this examination shall be completed no later than ninety (90) days from the date of the notice;

                     (d)  In the event the employee fails to submit to the examination at the time and place identified in the notice form and fails to schedule, within thirty (30) days from the date of the notice, an alternative examination date, as provided in subdivision (4)(C)(iii)(c ), then the employee's periodic benefits shall be suspended for a period of thirty (30) days;

                     (e)  In the event the employee schedules an alternative date for the examination as provided in subdivision (4)(C)(iii)(c ), and fails to submit to the examination within the ninety (90) day period, then the employee's periodic benefits shall be suspended for a period of thirty (30) days beginning at the end of the ninety (90) day period within which the alternatively scheduled examination was to be completed;

                     (f)  If the employee submits to an examination within any period of suspension of benefits, then within fourteen (14) days of the submission, periodic benefits shall be restored and any periodic benefits that were withheld during any period of suspension of benefits shall be remitted to the employee;

                     (g)  Within ten (10) days of the date on which periodic benefits are suspended pursuant to either subdivision (4)(C)(iii)(d ) or (4)(C)(iii)(e ), the entity suspending the periodic benefits shall notify the department, in writing, that periodic benefits have been suspended and the date on which the periodic benefits were suspended and shall provide the department a copy of the original notice of demand for examination sent to the employee; and

                     (h)  After the department receives notice of suspension of benefits pursuant to either subdivision (4)(C)(iii)(d ) or (4)(C)(iii)(e ), the department shall contact the employee and for a period of thirty (30) days assist the employee to schedule an examination to be conducted by the physician named in the notice. After the thirty (30) day assistance period has elapsed, if the employee has not submitted to an examination, the department shall authorize the employer, insurer or department to suspend periodic benefits for a period of thirty (30) days. At the conclusion of each thirty (30) day suspension period, periodic benefits shall be restored. After the restoration of periodic benefits, the department shall, in thirty (30) day cycles, continue to assist the employee to schedule the examination, to be followed by thirty (30) day cycles of suspension of benefits until the examination of the employee is completed. If, at any time during any period of suspension of periodic benefits, the employee submits to an examination, then within fourteen (14) days of notice of the examination having been conducted, periodic benefits shall be restored and any periodic benefits that were withheld during any period of suspension shall be remitted to the employee;

                (iv)  Subsequent to an examination as described in this subdivision (4)(C), the employer, insurer or department may request a reconsideration of the issue of whether the employee continues to be permanently totally disabled based on any changes in the employee's circumstances that have occurred since the time of the initial settlement or trial;

                (v)  Prior to filing any request for reconsideration, the employer, insurer or department shall request a benefit review conference with the department. The parties may not waive the benefit review conference. If the parties are unable to reach an agreement at the benefit review conference, the employer, insurer or department may file a request for reconsideration before the court originally adjudging or approving the award of permanent total disability. In the event that a settlement approved by the department is to be reconsidered under these provisions, then a cause of action should be filed as provided in § 50-6-225;

                (vi)  In the event a reconsideration request is filed pursuant to this section, the only remedy available to the employer, insurer or department is the modification or termination of future periodic disability benefits;

                (vii)  In the event the employer, insurer or department files a request for reconsideration or cause of action under this subdivision (4)(C) and the court does not terminate the employee's future periodic disability benefits, the employee shall be entitled to an award of reasonable attorney fees, court costs and reasonable and necessary expenses incurred by the employee in responding to the request for reconsideration upon application to and approval by the court. In determining what attorney fees shall be awarded under this subdivision (4)(C), the court shall make specific findings with respect to the following criteria:

                     (a)  The time and labor required, the novelty and difficulty of the questions involved in responding to the request for reconsideration, and the skill requisite to perform the legal service properly;

                     (b)  The fee customarily charged in the locality or by the attorney for similar legal services;

                     (c)  The amount involved and the results obtained;

                     (d)  The time limitations imposed by the client or by the circumstances; and

                     (e)  The experience, reputation, and ability of the lawyer or lawyers performing the services;

          (D)  (i)  The employer, insurer or department, in the event the second injury fund is involved, shall notify the department, on a form to be developed by the department, of the entry of a final order adjudging an employee to be permanently totally disabled. The form shall be submitted to the department within thirty (30) days of the entry of the order;

                (ii)  On an annual basis, the department shall require an employee who is receiving permanent total disability benefits to certify on forms provided by the department that the employee continues to be permanently totally disabled, that the employee is not currently working at an occupation that brings the employee an income and has not been gainfully employed since the date permanent total disability benefits were awarded, by trial or settlement;

                (iii)  The department shall send the certification form to the employee by certified mail, return receipt requested and shall include a self-addressed stamped envelope for the return of the completed form; and

                (iv)  In each annual cycle, if the employee fails to return the form to the department within thirty (30) days of the date of receipt of the form, as evidenced by the date on the return receipt notice, then the department shall notify the entity who gave notice to the department that the employee was permanently totally disabled pursuant to subdivision (4)(D)(i) that four (4) weeks of periodic disability benefits shall be withheld from the employee as a penalty for the failure to return the form to the department. If the completed form is returned to the department within one hundred twenty (120) days of the date on the return receipt notice, the department shall notify the appropriate entity and then, within fourteen (14) days of receipt of the notice from the department, that entity shall refund to the employee the entire four (4) weeks of periodic disability benefits previously withheld from the employee;

     (5)  Deductions in Case of Death.  In case a worker sustains an injury due to an accident arising out of and in the course of the worker's employment, and during the period of disability caused by the injury death results proximately from the injury, all payments previously made as compensation for the injury shall be deducted from the compensation, if any, due on account of death; and

     (6)  For social security purposes only, as permitted by federal law or regulation, in an award of compensation as a lump sum or a partial lump sum under this chapter for permanent partial or permanent total disability, the court may make a finding of fact that the payment represents a payment to the individual to be distributed over the individual's lifetime based upon life expectancy as determined from mortality tables from this code.

[Acts 1919, ch. 123, § 28; 1923, ch. 84, § 1; Shan. Supp., § 3608a177; Acts 1927, ch. 40, § 2; Code 1932, § 6878; Acts 1941, ch. 90, § 5; 1947, ch. 139, § 6; 1949, ch. 277, § 3; C. Supp. 1950, § 6878; Acts 1953, ch. 111, § 2; 1955, ch. 182, §§ 2-5; 1957, ch. 270, §§ 1-3; 1959, ch. 172, §§ 2-6; 1961, ch. 26, § 1; 1961, ch. 125, § 1; 1963, ch. 362, §§ 1, 4; 1965, ch. 158, § 1; 1967, ch. 313, §§ 1, 2, 4, 5; 1969, ch. 196, §§ 1, 2; 1971, ch. 134, §§ 1, 2, 4; 1973, ch. 379, § 6; 1974, ch. 617, §§ 2, 7; 1975, ch. 86, §§ 2, 7; 1977, ch. 354, § 2; impl. am. Acts 1978, ch. 934, §§ 16, 36; Acts 1979, ch. 365, § 2; impl. am. Acts 1980, ch. 534, § 1; Acts 1980, ch. 607, §§ 2-5; 1981, ch. 333, §§ 2-5; 1982, ch. 880, §§ 2-5; T.C.A. (orig. ed.), § 50-1007; Acts 1985, ch. 393, §§ 5-9; 1992, ch. 900, § 17; 1996, ch. 919, § 2; 2000, ch. 852, §§ 4, 20; 2002, ch. 833, §§ 1-3; 2003, ch. 194, § 1; 2004, ch. 443, § 1; 2007, ch. 403, § 1; 2007, ch. 513, § 1; 2009, ch. 599, § 4.]