Medical Treatment, Attendance and Hospitalization — Release of Medical Records — Reports — Disputes — Reimbursement or Payment of Expenses — Burial Expenses — Physical Examinations — Pain Management — Impairment Ratings
Medical Treatment, Attendance and Hospitalization — Release of Medical Records — Reports — Disputes — Reimbursement or Payment of Expenses — Burial Expenses — Physical Examinations — Pain Management — Impairment Ratings
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The employer or the employer's agent shall furnish, free of charge to the employee, such medical and surgical treatment, medicine, medical and surgical supplies, crutches, artificial members, and other reasonable and necessary apparatus, including prescription eyeglasses and eye wear, such nursing services or psychological services as ordered by the attending physician and hospitalization, including such dental work made reasonably necessary by accident as defined in this chapter.
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).
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 bureau have reasonable access to the employee's medical records and medical providers that are pertinent to and necessary for the efficient resolution of the employee's workers' compensation claim in a timely manner. To that end, employers or case managers may communicate with the employee's authorized treating physician, orally or in writing, and each medical provider shall be required to release the records of any employee treated for a work-related injury to both the employer and the employee within thirty (30) days after admission or treatment. There shall be no implied covenant of confidentiality with respect to those records, which will include all written memoranda or visual or recorded materials, e-mails and any written materials provided to the employee's authorized treating physician, by case managers, employers, insurance companies, or their attorneys or received from the employee's authorized treating physician.
For purposes of subdivision (a)(2), “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, or any utilization review agent as authorized by § 50-6-124 during the employee’s treatment for the claimed workers’ compensation injury.
If the bureau becomes involved in the appeal of a utilization review issue, then the bureau 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, and any attorney representing the employee or employer that they may review or copy the documents and responses. Each party requesting copies of records shall pay a fee authorized by subdivision (a)(1)(B) prior to the bureau providing the requested copies.
No relevant information developed in connection with authorized medical treatment or an 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, records, opinions, or reports as described in subdivision (a)(2)(C); provided, that the medical provider complies with subdivision (a)(2)(C).
The injured employee shall accept the medical benefits afforded under this section; provided that in any case when the employee has suffered an injury and expressed a need for medical care, the employer shall designate a group of three (3) or more independent reputable physicians, surgeons, chiropractors or specialty practice groups if available in the injured employee's community or, if not so available, in accordance with subdivision (a)(3)(B), from which the injured employee shall select one (1) to be the treating physician.
When necessary, the treating physician selected in accordance with this subdivision (a)(3)(A) shall make referrals to a specialist physician, surgeon, or chiropractor and immediately notify the employer. The employer shall be deemed to have accepted the referral, unless the employer, within three (3) business days, provides the employee a panel of three (3) or more independent reputable physicians, surgeons, chiropractors or specialty practice groups. In this case, the employee may choose a specialist physician, surgeon, chiropractor or specialty practice group to provide treatment only from the panel provided by the employer.
The liability of the employer for the services provided to the employee shall be limited to the maximum allowable fees that are established in the applicable medical fee schedule adopted pursuant to this section.
The bureau shall have authority to waive subdivision (a)(3)(A)(iii) when necessary to provide treatment for an injured employee.
If three (3) or more independent reputable physicians, surgeons, chiropractors, or specialty practice groups not associated in practice together are not available in the employee's community, the employer shall provide a list of three (3) independent reputable physicians, surgeons, chiropractors, or specialty practice groups not associated in practice together that are within a one-hundred-twenty-five-mile radius of the employee's community of residence. For purposes of this subdivision (a)(3)(B), “not associated in practice together” means at least one (1) physician, surgeon, chiropractor, or specialty practice group is not associated in practice with another physician, surgeon, chiropractor, or specialty practice group that is on the list or panel provided to an employee pursuant to this section.
When the treating physician or chiropractor refers the injured employee, the employee shall be entitled to have a second opinion on the issue of surgery and diagnosis from a physician or chiropractor from a panel of two (2) physicians practicing in the same specialty as the physician who recommended the surgery. In cases where the employer has provided a panel of specialists pursuant to subdivision (a)(3)(A)(i) of this section, the employee may choose one (1) of the two (2) remaining specialists to provide a second opinion on the issue of surgery and diagnosis. The employee's decision to obtain a second opinion shall not alter the previous selection of the treating physician or chiropractor.
The employer shall provide the applicable panel of physicians or chiropractors to the employee in writing on a form prescribed by the bureau, and the employee shall select a physician or chiropractor from the panel, sign and date the completed form, and return the form to the employer. 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 bureau.
In any case when the employee has been presented the physician selection form but has failed to sign the completed form and return it to the employer, the employee's receipt of treatment from any physician provided in the panel after the date the panel was provided shall constitute acceptance of the panel and selection of the physician from whom the employee received treatment as the treating physician, specialist physician, chiropractor or surgeon.
In all cases where the treating physician has referred the employee to a specialist physician, surgeon, chiropractor or specialty practice group, the specialist physician, surgeon, or chiropractor to which the employee has been referred, or selected by the employee from a panel provided by the employer, shall become the treating physician until treatment by the specialist physician, surgeon, or chiropractor concludes and the employee has been referred back to the treating physician selected by the employee from the initial panel provided by the employer under subdivision (a)(3)(A).
In all cases when an employee changes the employee's community of residence after selection of a physician under this subdivision (a)(3), the employer shall provide the employee, upon written request, a new panel of reputable physicians, surgeons, chiropractors or specialty practice groups, as provided in subdivision (a)(3)(A), from which the injured employee shall select one (1) to be the treating physician.
If any physician, surgeon, chiropractor or specialty practice group included on a panel provided to an employee under this subsection declines to accept the employee as a patient for the purpose of providing treatment to the employee for his workers' compensation injury, the employee may either select a physician from the remaining physicians, surgeons or chiropractors included on the initial panel provided to the employee pursuant to subdivision (a)(3)(A) or request that the employer provide an additional choice of a physician, surgeon, chiropractor or specialty practice group to replace the physician, surgeon or chiropractor who refused to accept the injured employee as a patient for the purpose of treating the employee's workers' compensation injury.
Any treatment recommended by a physician or chiropractor selected pursuant to this subdivision (a)(3) or by referral, if applicable, shall be presumed to be medically necessary for treatment of the injured employee.
Following the adoption of treatment guidelines pursuant to § 50-6-124, the presumption of medical necessity for treatment recommended by a physician or chiropractor selected pursuant to this subsection or by referral, if applicable, shall be rebuttable only by clear and convincing evidence demonstrating that the recommended treatment substantially deviates from, or presents an unreasonable interpretation of, the treatment guidelines.
[Deleted by 2013 amendment, effective July 1, 2014.]
[Deleted by 2013 amendment, effective July 1, 2014.]
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.
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.
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.
[Deleted by 2013 amendment, effective July 1, 2014.]
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 ten thousand dollars ($10,000). 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.
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.
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.
[Deleted by 2013 amendment, effective July 1, 2014.]
The employer shall pay for the services of the physician making the examination at the instance of the employer.
When a dispute as to the degree of medical impairment exists, either party may request an independent medical examiner from the administrator's registry. If the parties are unable to mutually agree on the selection of an independent medical examiner from the administrator's registry, it shall be the responsibility of the employer to provide a written request to the administrator 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 administrator 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 administrator 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.
The administrator shall establish by rule, in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, an independent medical examiners registry. The administrator 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.
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.
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.
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.
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.
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.
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.
If an employer does not provide medical care and treatment, medical services or medical benefits, or both, that an employee contends should be provided as a result of a judgment or decree entered by a workers' compensation judge following a workers' compensation trial or as a result of a workers' compensation settlement agreement, either the employee or the employer, or the attorney for the employee or employer, shall request the assistance of a workers' compensation mediator to determine whether such medical care and treatment, medical services or medical benefits, or both, are appropriate by filing a petition for benefit determination and participating in alternative dispute resolution as provided in § 50-6-236. If the parties do not resolve the dispute by agreement, either party may file a request for a hearing and submit the dispute to a workers' compensation judge for resolution after the workers' compensation mediator has issued a dispute certification notice in accordance with § 50-6-236.
A workers' compensation judge shall have the authority to determine whether it is appropriate to order the employer or the employer's insurer to provide specific medical care and treatment, medical services or medical benefits, or both, to the employee pursuant to a judgment or decree entered by a judge following a workers' compensation trial or pursuant to a workers' compensation settlement agreement approved by a workers' compensation judge pursuant to § 50-6-240. The workers' compensation judge's authority shall include, but is not limited to, the authority to order specific medical care and treatment, medical services or medical benefits, or both. The authority of a workers' compensation judge to order the provision of benefits under this section shall include authority to order specific medical care and treatment, medical services or medical benefits, or both for all settlements approved by the department, the bureau, the commissioner, the commissioner's designee or a workers' compensation specialist, even if the settlement was approved under prior law.
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)(3).
The administrator, 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, 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 administrator 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 administrator 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 administrator 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.
The administrator 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.
The administrator, 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 administrator 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.
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.
If a treating physician determines that pain is persisting for an injured or disabled employee beyond an expected period for healing, the treating physician may either prescribe, if the physician is a qualified physician as defined in subdivision (j)(2)(B), or refer, such injured or disabled employee for pain management encompassing pharmacological, nonpharmacological and other approaches to manage chronic pain.
In the event that a treating physician refers an injured or disabled employee for pain management, the employee is entitled to a panel of qualified physicians as provided in subdivision (a)(3) except that, in light of the variation in availability of qualified pain management resources across the state, if the office of each qualified physician listed on the panel is located not more than one hundred seventy-five (175) miles from the injured or disabled employee's residence or place of employment, then the community requirement of subdivision (a)(3) shall not apply for the purposes of pain management.
For purposes of the panel required by subdivision (j)(2)(A), “qualified physician” means a physician who has met the requirements set forth in the Chronic Pain Guidelines of the State of Tennessee, Department of Health, definition of “Pain Management Specialist.”
The injured or disabled employee is not entitled to a second opinion on the issue of impairment, diagnosis or prescribed treatment relating to pain management. However, on no more than one (1) occasion, if the injured or disabled employee submits a request in writing to the employer stating that the prescribed pain management fails to meet medically accepted standards, then the employer shall initiate and participate in utilization review as provided in this chapter for the limited purpose of determining whether the prescribed pain management meets medically accepted standards.
As a condition of receiving pain management that requires prescribing Schedule II, III, or IV controlled substances, the injured or disabled employee may sign a formal written agreement with the physician prescribing the Schedule II, III, or IV controlled substances acknowledging the conditions under which the injured or disabled employee may continue to be prescribed Schedule II, III, or IV controlled substances and agreeing to comply with such conditions.
If the injured or disabled employee violates any of the conditions of the agreement on more than one (1) occasion, then:
The employee's right to pain management through the prescription of Schedule II, III, or IV controlled substances under this chapter shall be terminated and the injured or disabled employee shall no longer be entitled under this chapter to the prescription of such substances for the management of pain;
For injuries occurring on or after July 1, 2012, the violation shall be deemed to be misconduct connected with the employee's employment for purposes of § 50-6-207(3); and
For injuries occurring on or after July 1, 2012, in the event such violation occurs prior to a finding that the injured or disabled employee is totally disabled as provided in § 50-6-207(4), through either a judgment or decree entered by a court following a workers' compensation trial or a settlement agreement approved pursuant to § 50-6-206 [See the Compiler's Notes], the incapacity to work due to lack of pain management shall not be considered when determining whether the injured employee is entitled to permanent total disability benefits as provided in § 50-6-207(4).
A physician may disclose the employee's violation of the formal written agreement on the physician's own initiative. Upon request of the employer, a physician shall disclose the employee's violation of the formal written agreement as provided in this section.
The formal written agreement shall include a notice to the employee in capitalized, conspicuous lettering on the face of the agreement the consequences for violating the terms of the agreement as provided for in this subsection (j).
If an employer terminates an injured or disabled employee's right under this chapter to pain management through the prescription of Schedule II, III, or IV controlled substances pursuant to alleged violations of the formal agreement as provided in subdivision (j)(4)(B), then the employee may file a petition for benefit determination.
If an employer or insurer alleges that an injured or disabled employee is not entitled to reconsideration under § 50-6-207(3) or permanent total disability benefits as provided in § 50-6-207(4) because of the employee’s alleged violations of the formal agreement as provided in subdivision (j)(4)(B), then a court shall also determine whether such violations occurred.
Prescribing one (1) or more Schedule II, III, or IV controlled substances for pain management treatment of an injured or disabled employee for a period of time exceeding ninety (90) days from the initial prescription of any such controlled substances is considered to be medical care services for the purposes of utilization review as provided in this chapter. The department is authorized to impose a fee for the administration of an appeal process for utilization review under this subdivision (j)(5) and subdivision (j)(3).
All permanent impairment ratings shall be assigned by the treating physician or chiropractor.
The treating physician or chiropractor shall utilize the applicable edition of the AMA guides as established by this chapter.
The medical advisory committee shall, within six (6) months of the release of a new edition, conduct an evaluation of the new edition, report the committee's findings to the administrator and recommend to the administrator whether the new edition should be designated for application to this chapter. The administrator shall report the committee's findings and recommendation 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.
No 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 alternative dispute resolution proceedings or be admissible into evidence at the trial of a workers' compensation claim unless the impairment rating 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.
The treating physician or chiropractor shall assign impairment ratings as a percentage of the body as a whole and shall not consider complaints of pain in calculating the degree of impairment, notwithstanding allowances for pain provided by the applicable edition of the AMA guides as established by this chapter.
The treating physician or chiropractor shall evaluate the employee for purposes of assigning an impairment rating and the employee shall attend the evaluation. An employee who fails to attend a scheduled evaluation without justifiable cause shall be subject to sanctions up to and including dismissal of the employee's claim for workers' compensation benefits.
Scheduling of the evaluation shall occur within time limits and according to procedures promulgated by the administrator by rule.
The treating physician or chiropractor shall complete the evaluation and submit an impairment rating report, on a form prescribed by the administrator, within time limits imposed by the administrator through the promulgation of rules.
The treating physician's or chiropractor's written opinion of the injured employee's permanent impairment rating shall be presumed to be the accurate impairment rating. This presumption shall be rebuttable by the presentation of contrary evidence that satisfies a preponderance of the evidence standard.