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Knoxville Personal Injury Law Blog

The Devolution of Workers' Compensation

The following article was recently produced by the Workplace Injury Litigation Group regarding the state of workers' compensation laws in America.

In the early part of the twentieth century, the only legal remedy for a worker injured or killed as a result of a work-related accident was to bring a "common-law" action against his employer to recover economic and non-economic losses. The process caused much delay and employers were armed with common-law civil defenses such as "contributory negligence," "assumption of risk," and the "fellow-servant doctrine." Even if an employer ultimately won a suit, the employer's potential risk of liability and cost of defending a claim was great and the litigation delays for employees were devastating with legal assistance unaffordable. Furthermore, at the time there were few other remedies for help available for injured workers or their families, such as public social insurance assistance, or affordable health care for the working class.

"The Grand Bargain" was struck to create in each state a statutory system of "workers' compensation" to provide injured workers and their families compensation for economic losses and medical treatment associated with work-related injuries and deaths, without regard to fault of either the employer or employee. In exchange for this "no-fault" agreement and benefits (aka: the "Quid Pro Quo"), workers were prohibited from suing their employers, which afforded employers protection from large judgments for non-economic losses such as pain and suffering or punitive damages, as well as judicial awards for related future damages . This compromise gave birth to the legal notion that, in most cases, workers' compensation is an "exclusive remedy" providing immunity and exclusivity from tort suits against an employer.

Nearly a century ago, after the State of New York passed one of the first workers' compensation statutes, the U.S. Supreme Court considered the constitutionality of such legislative replacement of a common law tort remedy for work-related injuries, with an exclusive remedy no-fault system with so-called "scheduled" benefits for injured workers. The "Grand Bargain" was upheld by the Court in New York Central Railroad v. White, 243 US 188, 37 S.Ct. 247, 61 L. Ed 667 (1917).

The landmark case in White, holding that the use of workers' compensation laws in place of tort remedies must provide "significant" benefits, was quick to recognize that there was a limit to a state legislature's authority to provide such a statutory remedy that abolished an injured worker's longstanding right to sue his employer for an array of common law damages. Thus, in such an exchange of constitutional rights, any "consideration" for such a Grand Bargain must provide a "reasonable amount, and according to a reasonable and definite scale, by way of compensation for the loss of earning power incurred in the common enterprise..."

Workers' compensation claims: what benefits do you have?

The Tennessee Workers' Compensation Act allows for workers to claim for workplace injuries. Workers may institute workers' compensation claims after an authorized medical practitioner has confirmed that the injury can be considered as workplace related. The responsibility to ensure benefits for workers lies with the employer.

Workers injured at their workplace are mainly entitled to claim for medical benefits and replacement of wages. Firstly, the person may be entitled to receive medical benefits. Medical benefits include medical care for work-related illnesses as well as workplace injuries. Employees should not pay for medical costs if the doctor deems them to be necessary and relate to the injury. The medical benefits do not only include treatment, but also any other related costs for medical services, supplies and aids, providing the treating doctor considers it related to the injury and necessary.

Possibility of fewer 18-wheeler crashes due to new requirements

Serious accidents involving large trucks and buses are an all too familiar sight on Tennessee roads. Hopefully, the gradual enforcement of a new federal rule, which was finalized mid-2015, is going to lead to a drastic decrease in bus and 18-wheeler crashes. Between 2017 and 2019, all tractor trucks and buses will gradually be required to have electronic stability control (ESC) systems installed.

ESC systems have been used in the manufacturing of passenger vehicles for some time. These systems have led to significant decreases in rollover accidents. By installing ESC systems in buses and big trucks, it is estimated that a minimum of 49 people can be saved, while 649 injuries and 1,759 crashes can be prevented per year. These figures can increase drastically should the equipment be 100 percent effective.

Social Security Disability Insurance (SSDI) - Update on Attorney Advisor decisions

A reoccurring theme on my blog is the backlog at the hearing level for Social Security Disability Insurance (SSDI) and SSI claims. I recently discussed that one of the factors in the backlog was the decrease in on-the-record (OTR) Fully Favorable Decision produced by attorney advisors (AA's) or known as senior attorneys. The Social Security Administration (SSA) and the National Hearing Office are tinkering with the programs in effort to reduce the hearing backlog for Social Security Disability Insurance (SSDI) and SSI claims.

First, a bit of background regarding the role of AA's. During the mid 2000's, the AAs were part of a program to reduce the hearing backlog by allowing them to decide plans on-the-record which were likely succeed during full adjudication. For instance in 2010, AAs decided about 54,000 cases. However, by the end of fiscal year 2015, they had only decided 607 cases for the entire year. This is part of the reason the processing times continued to escalate as well as the number of pending cases at the hearing level increased.  Claimants' attorneys could refer cases likely for fully-favorable on-the-record decisions to the AAs, but that is no longer the case.

In 2011, ODAR announced an initiative called The Virtual Screening Unit (VSU) made up of about 100 ODAR attorneys who screened cases identified by the National ODAR. Representatives could not refer cases to the VSU for review. In 2013, procedures became more restrictive partially due to congressional hearings critical of the hearing level processes. In late 2013, ODAR restricted the authority of AAs to only review and issue fully-favorable decisions in cases that had been selected by the "National Screening Unit" (NSU), not those reviewed at the direction of the local hearing office management. Also, there were very limited categories of cases where AAs could issue fully-favorable decisions.

In 2015, procedures changed again and ODAR created the National Adjudication Team (NAT). These are full-time senior attorneys able to issue fully-favorable decisions in cases appearing to have a strong likelihood of a favorable decision. This team will handle cases nationally only as assigned and selected by the National ODAR with limited circumstances where the NAT attorneys can issue fully-favorable decisions.

Overall, this floundering by the National ODAR and the SSA in terms of a realistically effective use of AAs is unlikely to succeed in reducing the backlog of cases at the hearing level.

Severely injured, then an accident dispute due to no insurance

Have you ever been involved in an accident with another driver who either had no insurance or was underinsured? There is little doubt that the situation brought you no joy and quite possibly led to an accident dispute when you made a claim after being severely injured. Residence in Tennessee may be spared such a situation as the lawmakers in this state are cracking down on uninsured drivers.

Recently, the state legislators have passed laws in which the penalties that can be imposed on uninsured drivers have been made substantially more severe. Not only have the fines an uninsured driver can face increased by $200, but a transgressor may have to face a jail term of nearly one year. Harsher penalties will hopefully lead to increased compliance with insurance requirements.

Injuries due to animal bites? Where should you turn?

Injuries due to animal bites are common occurrences across Tennessee. In most cases, the injuries suffered can be ascribed to dog bites, but other animals can also cause serious injuries. Victims of attacks by animals may have legal rights to claims for damages suffered, but they may not be sure of where to turn or what to do.

Quite obviously, the first course of action is to obtain medical treatment promptly. Once a victim has consulted with a doctor, it may be prudent to contact a lawyer who has experience in dealing with animal attack cases. A lawyer is in the ideal position to evaluate a case and provide a victim with the necessary advice.

2 families devastated after car wreck

While most of Tennessee was preparing for New Year's parties, two families were dealing with the repercussions of a tragic accident. A car wreck involving three cars happened around lunch time on the last day of 2015. It is reported that one of the cars involved smashed into a minivan, forcing it into oncoming traffic.

A family of four traveling in a minivan was waiting for a red light to change when the van was hit from behind by a sedan. It is estimated that the elderly driver of the sedan was traveling at 90 mph when her vehicle smashed into the minivan. The force of the impact was so great that the minivan was propelled into a pickup truck on the opposite side of the intersection.

Social Security Disability Insurance (SSDI) - Hearing Time Update

Waiting For Social Security Benefits- (1).jpg

It has been since early October that I checked in on the processing times and approval rates for Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) claims for some hearing offices in Tennessee and Eastern Kentucky. Please remember that these statistics are only for claims pending at the hearing level or Office of Disability Adjudication and Review. The claims at a hearing office have already been through the Application and Reconsideration steps (typically 6-12 months of waiting already).

Nationally:

· Average processing time: 490 days (up from 444 in May)

· 43% cases approved (continuing downward)

Knoxville, Tennessee:

· Average processing time: 537 days (actually down from 540 in April)

· 44% cases approved (down about 2% from previous months)

Chattanooga, Tennessee:

· Average processing time: 565 days! (up from 521 days in May)

· 49% approved (a huge decrease from 57% cases approved!)

Kingsport, Tennessee:

· Average processing time: 399 days (up from 339 in April)!

· 60% cases approved

Nashville, Tennessee

· Average processing time: 465 - down from 503 days!

· 46% cases approved

Franklin, Tennessee

· Average processing time: 507 days - up from 467 days in May.

· 53% cases approved

Middlesboro, Kentucky

· Average processing time: 479 days - up from 410 in April!

· 43% cases approved

The hearing office staff work hard and understand the frustrations of the claimants and representatives, but they are hamstrung by the workload and budgetary restraints.

Consideration of possible workplace injury while welding

Welding can be described as an art and a science which fascinates many. However, it is very important for welders and their employers to ensure that great care is taken when welding is done in order to avoid a workplace injury. Tennessee employers must ensure that the equipment used by their welders complies with the required safety standards and that safe work practices are instilled in their welders as appropriate work habits.

The most common types of welding are oxygen-fuel and electric welding. Both have specific safety issues which need to be taken into consideration. One of the most prominent hazards welders can be exposed to relates to the gases emitted while welding. Exposure to gases depends on the environment in which the welding takes place, as well as the material which is used.

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