Subsequent Permanent Injury After Sustaining Previous Permanent Injury — Subsequent Injury and Vocational Recovery Fund — Disbursement
— Settlement Authority
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If an employee has previously sustained a permanent physical disability from any cause or origin and becomes permanently and totally disabled through a subsequent injury, the employee shall be entitled to compensation from the employee's employer or the employer's insurance company only for the disability that would have resulted from the subsequent injury, and the previous injury shall not be considered in estimating the compensation to which the employee may be entitled under this chapter from the employer or the employer's insurance company; provided, that in addition to the compensation for a subsequent injury, and after completion of the payments for the subsequent injury, then the employee shall be paid the remainder of the compensation that would be due for the permanent total disability out of a special fund to be known as the subsequent injury and vocational recovery fund.
To receive benefits from the subsequent injury and vocational recovery fund, the injured employee must be the employee of an employer who has properly insured the employer's workers' compensation liability or has qualified to operate under this chapter as a self-insurer, and the employer must establish that the employer had actual knowledge of the permanent and preexisting disability at the time that the employee was hired or at the time that the employee was retained in employment after the employer acquired knowledge, but in all cases prior to the subsequent injury.
In determining the percentage of disability for which the subsequent injury and vocational recovery fund shall be liable, no previous physical impairment shall be considered unless the impairment was within the knowledge of the employer as prescribed in subdivision (a)(2).
Nothing in this section shall be construed to limit the employer's liability as provided by law for aggravation of preexisting conditions or disabilities in cases where recovery against the subsequent injury and vocational recovery fund is not applicable.
Claims against the fund shall be made by either the injured employee or the employer in the manner prescribed in § 50-6-239. In all cases when a party is making a claim against the fund, the party advancing the claim shall give notice to the fund of any alternative dispute resolution proceedings scheduled pursuant to § 50-6-236.
Nothing in this section shall relieve the employer or its insurance company of liability for other benefits that may be due the injured employee, including temporary benefits, medical expenses and permanent benefits for injuries.
[Deleted by 2013 amendment, effective July 1, 2014.]
A sum sufficient to provide the benefits of this section shall be allocated from the four percent (4%) premium tax imposed in § 50-6-401(b), subject to a maximum allocation of fifty percent (50%) of the premium tax collected. The sums shall be deposited in the subsequent injury and vocational recovery fund for distribution by the administrator of the bureau of workers' compensation.
There is appropriated a sum sufficient to the subsequent injury and vocational recovery fund for payment of benefits provided in this section, pursuant to this section. The appropriation shall be allocated from and equal to an amount not greater than fifty percent (50%) of the revenues derived from the premium tax levied pursuant to § 50-6-401.
The sums collected by the administrator as provided in this section must be deposited by the administrator in a special fund, which must be termed the “subsequent injury and vocational recovery fund”, to be disbursed by the administrator only for the purposes stated in this section, for costs associated with legal counsel to defend the administrator in actions claiming compensation from the subsequent injury and vocational recovery fund pursuant to this section, and for costs associated with providing vocational recovery assistance to eligible employees pursuant to subsection (j). Monies remaining in the fund must not, at any time, be appropriated or diverted to any other purpose. The administrator shall not invest any monies in the subsequent injury and vocational recovery fund in any other manner than is provided by the general laws of the state for investments of funds in the hands of the state treasurer. Disbursements from the fund for permanent total physical disabilities must be made by the administrator only after receipt by the administrator of a certified copy of the court decree awarding compensation as provided in this section. Disbursements must be made only in accordance with the decree. A copy of the decree awarding compensation from the fund must in all cases be filed with the bureau. The administrator has the authority in accordance with subsection (j) to make disbursements for vocational recovery assistance from the fund without any court decree.
The administrator, in consultation with the attorney general and reporter, shall prepare a plan for a pilot project using private legal counsel to defend the administrator in actions claiming compensation from the subsequent injury and vocational recovery fund pursuant to § 50-6-206 [See the Compiler's Notes.]. The plan shall include types of cases, approximate numbers of cases, proposed method of selection and other relevant matters. Any private legal counsel retained for these purposes shall be retained pursuant to § 8-6-106. Expenses relating to private legal counsel retained pursuant to this subsection (f) shall be paid from the subsequent injury and vocational recovery fund.
Before any proposed settlement is considered final in cases involving benefits from the subsequent injury and vocational recovery fund under this section, it shall either:
Have the written approval of the administrator or the administrator's designee, in accordance with subdivision (g)(2); or
Have been approved in accordance with § 20-13-103.
The administrator is authorized to settle certain subsequent injury and vocational recovery fund claims without the necessity of complying with § 20-13-103; provided, that the attorney general and reporter, with the written approval of the governor and the comptroller of the treasury, shall set specific limits and conditions on the settlement authority.
In order to require the subsequent injury and vocational recovery fund to participate in the alternative dispute resolution, a party shall serve notice of potential liability on the fund.
“Party” or “parties,” as referenced in § 50-6-204(d)(5), shall include the subsequent injury and vocational recovery fund.
If, at the time compensation provided by § 50-6-207(3)(A) ends, the employee has not returned to work with any employer because of a work injury or has returned to work and is receiving wages or a salary that is less than one hundred percent (100%) of the wages or salary the employee received from the employee's pre-injury employer on the date of injury, the injured employee may request vocational recovery assistance from the subsequent injury and vocational recovery fund. To be eligible for assistance, the injured employee must:
Have received all compensation permitted under § 50-6-207(3); and
Submit to the bureau on a form approved by the administrator a request for vocational recovery assistance within ninety (90) days of the date of final payment for all periods of compensation to which an injured worker is entitled under § 50-6-207(3).
Vocational recovery assistance may include, but is not limited to, vocational assessment, employment training, job analysis, vocational testing, general education development (GED) classes and testing, and education through a public Tennessee community college, university, or college of applied technology, including books and materials required for courses. All assistance is subject to the maximum limitation set out in subdivision (j)(5).
The administrator may evaluate a request for vocational recovery assistance based upon the facts and circumstances relevant to the request and make a determination whether to grant any such request.
The administrator may distribute as vocational recovery assistance any revenues in the subsequent injury and vocational recovery fund that are in excess of:
The estimated required reserves for known claims and incurred but not reported subsequent injury claims, as determined in the most recent actuarial analysis;
The liability to be incurred from the date of the most recent actuarial analysis to the end of the fiscal year in which assistance is provided; and
The costs associated with legal counsel to defend the fund and administrative costs of the recovery assistance program.
The total amount paid on behalf of any eligible employee for vocational recovery assistance from the subsequent injury and vocational recovery fund pursuant to this subsection (j) must not exceed five thousand dollars ($5,000) in any one (1) fiscal year, and must not exceed the total sum of twenty thousand dollars ($20,000) per employee who participates in this program for all years. The total aggregate amount to be paid from the subsequent injury and vocational recovery fund as to all eligible employees is limited to a total of five hundred thousand dollars ($500,000) in any calendar year.
The administrator may promulgate rules in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, for the purpose of discharging the administrator's duties to carry out the purposes, goals, and intent of this subsection (j). Such rules may include determining future eligibility of assistance based upon satisfactory completion of coursework in courses taken.
This subsection (j) applies to injuries that occur on or after July 1, 2018, but does not apply to injuries that occur after June 30, 2021.