50-6-238 - Assistance of workers' compensation specialist in determining award of benefits Authority of specialist Refunds Specialist's determination as evidence Penalty for noncompliance with spe - Tennessee Statutes

50-6-238. Assistance of workers' compensation specialist in determining award of benefits Authority of specialist Refunds Specialist's determination as evidence Penalty for noncompliance with specialist's order.

(a)  (1)  (A)  Any party or their attorney may request the assistance of a workers' compensation specialist in the determination of whether temporary disability or medical benefits are appropriate by filing with the division a form prescribed for that purpose by the commissioner.

          (B)  (i)  For injuries occurring on or after July 1, 2008, if the request for the assistance of a workers' compensation specialist is filed pursuant to (a)(1)(A) within the time prescribed by § 50-6-203 or § 50-6-306, the time within which to file a request for a benefit review conference shall not expire before sixty (60) days after the issuance of a benefit review report by the workers' compensation specialist making the determination on the request for assistance.

                (ii)  Nothwithstanding subdivision (a)(1)(B)(i), in no event shall the parties have less time to file a request for a benefit review conference than is prescribed by § 50-6-203 or § 50-6-306.

          (C)  With respect to the determination of whether to order the payment of temporary disability or medical benefits, a workers' compensation specialist shall not be an advocate for either party, but shall decide the issues solely on the basis of the information available to the specialist without favor or presumption for or against either party.

     (2)  If, in light of available information, a workers' compensation specialist determines that it is appropriate to order the payment of temporary disability benefits to an employee, then a workers' compensation specialist may order the initiation, continuation or reinstitution of the benefits by an employer or the employers' workers' compensation insurer.

     (3)  If, in light of available information, a workers' compensation specialist determines that it is appropriate to order the employer or insurer to provide medical benefits, the specialist's authority shall include, but not be limited to, the authority to order specific medical treatment recommended by the treating physician, and the authority to require the employer to provide the appropriate panel of physicians to the employee, including a panel of appropriate specialists. The workers' compensation specialist shall also have the authority to enforce the provision of the panel of physicians as required under § 50-6-204(a)(4).

     (4)  Any benefits ordered by a workers' compensation specialist as provided in this subsection (a) shall be ordered on a form prescribed by the commissioner.

     (5)  If, under all of the relevant circumstances, the specialist deems it to be appropriate, the specialist shall order the retroactive payment of benefits.

     (6)  (A)  If a party submits information, including, but not limited to, written or electronic documents, medical records, video or audio tapes or X-rays, to a workers' compensation specialist who is considering whether to order temporary disability or medical benefits, or both, the party shall also provide a copy of the information submitted to the opposing party, or the opposing party's attorney, at the time the information is provided to the specialist or upon request by the opposing party or attorney, or both.

          (B)  Upon request, a workers' compensation specialist shall provide either the employee, the employer, the employer's insurer or attorneys representing any party, or all of these parties, an opportunity to review the information the specialist has in the department's file upon which the specialist may base a decision as to whether to order temporary disability or medical benefits, or both. The reviewing party shall have the right to request a copy of any document or record contained in the department's file.

          (C)  The department shall be entitled to charge a fee for copying and mailing the documents requested. The fee shall not exceed ten dollars ($10.00) for the first twenty-five (25) pages and a charge of twenty-five cents (25¢) for each page after twenty-five (25) pages. No additional fee shall be charged for postage. If the documents requested include videotapes, audiotapes or X-rays, the party who provided the video or audio tapes or X-rays to the specialist shall be required to provide a copy to the requesting party and the specialist shall have the authority to order the party to provide the tape or X-ray to the requesting party.

(b)  If a specialist has ordered the payment of benefits pursuant to this section and a court subsequently finds that the employee was not entitled to the ordered benefits, then the entity or person who paid the benefits shall be entitled to a refund of all amounts paid pursuant to a specialist's order or orders. The refund shall be paid from the second injury fund established by § 50-6-208. The entity or person who paid the benefits pursuant to a specialist's order or orders is not entitled to receive the refund until the claim has been fully concluded by trial court or, if appealed, by the Tennessee supreme court. To receive the refund, the employer or employer's insurer shall send a certified copy of the final order of the trial or appellate court to the division of workers' compensation, by certified mail, return receipt requested. If the refund is not made within thirty (30) days of the date the certified mail was accepted by the division, then the employer or employer's insurer shall be entitled to interest at the rate of ten percent (10%) per annum from the date the refund became overdue.

(c)  Evidence of the denial of initiation, continuation or reinstitution of compensation ordered pursuant to this section by a workers' compensation specialist is inadmissible in a subsequent proceeding. In a case where an employer or insurer has paid benefits pursuant to an order of a workers' compensation specialist, and the employer or insurer wishes to contest the compensability of the injury, then the court shall hear the issue de novo, and no presumption of correctness is given to any prior determination.

(d)  (1)  (A)  If a specialist issues an order that denies the compensability of the employee's claim or denies workers' compensation benefits to the employee, the employee may request the administrator of the division of workers' compensation to administratively review the specialist's order by submitting a written request to the administrator in a format specified by the administrator. The written request shall be submitted to the administrator no later than seven (7) calendar days from the date on which the employee received the specialist's order denying compensability or benefits. If no written request to administratively review the order of a specialist is submitted to the administrator of the division of workers' compensation, the order of the specialist becomes final.

          (B)  (i)  If a specialist issues an order for the payment of workers' compensation benefits pursuant to this section, the party against whom the order was issued may request the administrator of the division of workers' compensation to administratively review the specialist's order by submitting a written request to the administrator in a format specified by the administrator. The written request shall be submitted to the administrator no later than seven (7) calendar days from the date on which the party received the specialist's order that is the subject of the request.

                (ii)  If no written request to administratively review the order of a specialist is submitted to the administrator of the division of workers' compensation, as provided in this subsection (d), the party against whom a specialist has issued an order to provide or pay workers' compensation benefits shall comply with the order within fifteen (15) calendar days of the receipt of the order.

                (iii)  If a written request for administrative review of a specialist's order is submitted to the administrator of the division of workers' compensation, the party against whom a specialist has issued an order to provide or pay workers' compensation benefits is not required to comply with the specialist's order as outlined in subdivision (d)(1)(B)(ii).

     (2)  (A)  After receipt of a written request for administrative review of a specialist's order, an informal conference with the affected parties shall be conducted by the administrator or the administrator's designee. The informal conference with the administrator or the administrator's designee shall occur within ten (10) calendar days of the date the administrator received the written request for administrative review. The administrator's designee shall be a Tennessee licensed attorney, shall have a minimum of five (5) years of experience with the Workers' Compensation Law, compiled in this chapter, and shall not be the specialist who issued the order that is the subject of administrative review.

          (B)  Within seven (7) calendar days following the conclusion of the informal conference, a written order shall be issued and signed by the administrator or administrator's designee. If the order issued and signed by the administrator or administrator's designee orders the payment of workers' compensation benefits to or on behalf of the employee, the party against whom the order is issued shall comply with the order within ten (10) calendar days of the receipt of the order of the administrator or administrator's designee. [See the Compiler's Notes.]

     (3)  If an insurer, self-insured employer or self-insured pool fails to comply with an order issued by a specialist within fifteen (15) calendar days of receipt of the order, or fails to comply with an order issued by the administrator or administrator's designee within ten (10) calendar days of the receipt of the order, whichever is applicable, the commissioner shall assess a penalty in the amount of ten thousand dollars ($10,000). Notification of the assessed penalty shall be sent to the insurer, self-insured employer or self-insured pool by facsimile, electronic mail or certified mail. The insurer, self-insured employer or self-insured pool shall have five (5) calendar days from the receipt of the notification of penalty to respond and prove that it has complied with the specialist's order. If satisfactory proof of compliance is not received by the twenty-first calendar day after receipt of the notification of penalty, additional penalties in the amount of one thousand dollars ($1,000) per day shall begin to accrue on the twenty-first day. The insurer, self-insured employer or self-insured pool shall have the right to appeal the penalty assessed by the commissioner for failure to comply with an order issued by a specialist or by the administrator or administrator's designee pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

     (4)  In addition to any other penalty provided by law, if an insurer, self-insured employer or self-insured pool fails to comply with an order issued by a specialist or fails to comply with an order issued by the administrator or the administrator's designee within thirty (30) days of receipt of the order, the commissioner shall notify the commissioner of commerce and insurance of the failure to comply. The commissioner of commerce and insurance may consider the continued failure to comply with the order of the specialist or administrator or the administrator's designee as a violation of title 56, chapter 8, which subjects the insurer to the penalty provisions of § 56-8-109, and may consider any failure by a self-insured employer or self-insured pool to comply with the order of the specialist sufficient grounds to revoke the employer's status as a self-insured employer or self-insured pool pursuant to § 50-6-405.

[Acts 1992, ch. 900, § 13; 1998, ch. 1024, §§ 24, 25; 1999, ch. 265, §§ 1, 2; 1999, ch. 520, § 41; 2000, ch. 852, §§ 17-19; 2001, ch. 192, § 16; 2004, ch. 962, § 7; 2006, ch. 772, § 1; 2006, ch. 778, § 1; 2006, ch. 1014, § 2; 2007, ch. 403, § 2; 2008, ch. 1183, §§ 1-3.]